My take on yesterday's off year elections

A few random thoughts:

The big headlines are Reps win 2, Dems win 1, and opponents of gay marriage win, right? Kind of, but not really. It's more that the Republican party wins 3, and proponents of gay marriage in Maine are told to cool their heels.

The voter repudiation of a Maine law that would have made gay marriage legal is more of a delay than a defeat, I'd say. As such, there's not much more to say about it, except to remember the warning of Langston Hughes when he asked, "What happens to a dream deferred?"

Let's turn to the gubernatorial races. It's self-serving and axiomatic to say so, but races for governor really do have more to do with local issues and with individual candidates than with national trends. In the Virginia race, there's no getting around how weak of a candidate Deeds was and how purple Virginia is. If you really are okay with either Dems or Reps and vote based on the best individual for the job, in Virginia, you were going to go R. Similarly, in NJ, Corzine is currently an ass governor who in his past life was that most-beloved of all scape goats, a Goldman Sachs banker. For the past 20 years, the two most important issues in NJ statewide elections have been auto insurance and property taxes, and Conzine has fumbled both issues. Christie ran a bumpy but adequate campaign, so the challenger wins.

To my mind, NY-23 is the more elucidating example for national issues. Here you have a window into the nascent Republican civil war, although the outcome of the NY-23 election may very well preclude that conflict from taking too many casualties. That is, the tea-party, talk-radio wing thought they knew better than the Washington party leadership what would win in the provinces -- they were proved wrong and may or may not get another chance.

And about those governors -- while their victories do not represent a repudiation of Obama's goals, they are still very good news for the future of the Republican party. Why? Because governors represent the best stable of potential presidential contenders that a party has. Each party depends on having good governors because these represent a deep bench. When ranks are thin, you're soon on the rails (to keep this metaphor going and going).

Thus, all around the horn, all three elections were good news for Republicans. They have two more governors and their Jacobian extremists have been mollified (for now). And it's actually good news for all of us, which is to say, the entire nation benefits from having a healthy, functioning, diverse Republican (and Democratic) party. Many of my Dem friends have been saying this for a year, so they better not complain now that they're going to get it.

"I saw you under the fig tree"

Sermon preached at Wake Forest University School of Divinity chapel on September 29, 2009, by third year M.Div. student John Carter.

The texts, from the lectionary reading for today, St. Michael’s Day (Michaelmas), were Psalm 103, Genesis 28:10-17, and John 1:47-51 (New Jerusalem Bible).

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I’m not a wine enthusiast, but I have been to one or two wine tastings. For those of you who have been to one before, you know that often there will be something there for you to eat between the different glasses of wine. It’s called a palate cleanser.

In case you haven’t noticed, I have the unenviable position of being the first preacher many of you will have heard since Barbara Brown Taylor - but please don’t think of me as the next glass of wine after her big bold glass of cabernet. Think of me as the palate cleanser -- the blank taste in your mouth that will help you distinguish between Barbara Brown Taylor and the next preacher you hear.

Actually, I’ll take this opportunity to share with those of you who weren’t able to take the class one piece of advice she gave us: try to imagine how the Bible story would be viewed from the perspective of one of the marginal characters. For example, she said that when she’s looking at a gospel story, she says to herself, “Forget Peter James and John -- what does the least popular disciple think about what’s going on here? What does Bartholomew think of this?” I’ll leave you with that.

Anyway, on to the palate cleansing.

A ladder reaching to heaven. The gate of heaven. Angels of God ascending and descending through an opening in heaven. Ginny and Ryan led us all in a song with the line in the chorus, “falling down from heaven.”

We speak of heaven all the time, and yet it’s one of those words that the more you look at it, the more you think about it, the more you realize it’s not what you thought it was, and you’re not sure what it’s supposed to be instead.

The first we read of heaven in the entire Bible is on the second day of creation, when God made a vault in the middle of the waters, and God separated the waters under the vault from the waters above the vault. God called the vault heaven.

Now I’m going to stop here and state the obvious. The vault was merely intended to separate one thing from another. The writer could have stated it differently. The writer could have stated that the vault was intended to withhold the water above the vault, to keep it in. But it doesn’t say that. It just says it was intended as a divider.

Later in Genesis, though, you get the impression that the people felt that God was withholding something. So they built a tower in an attempt to see what God was withholding. Now the Bible does not say God was mad the people were trying to build a tower and reach heaven, and I don’t think he was. I just think he recognized it was a stupid plan. So, like a parent who realizes that her nine year old son is never going to be successful with his scheme to build an atom bomb but that he might hurt himself and others in the process, God told the people to cut it out and sent them to their rooms. And I think in some sense, God was as confused as the people at the end of the story. God knew he wasn’t withholding anything from his good creation, and he didn’t understand how the people thought he was.

So with Babel still in our minds, let’s turn to the stories of Jacob and Nathanael. And how is heaven depicted in these stories? Well, for one thing, the vault has been breached. In Jacob’s story, the angels go back and forth between heaven and earth via the ladder of Jacob’s dream, and in the second story, the angels curiously go back and forth not on a ladder but upon the Son of Man. The main idea here for John is that instead of a ladder that appears as a part of one man’s dream, there will be a permanent connector put in place, one to last for all time.

So what are the people doing while this is going on? Intriguingly, they’re being called. Somehow there’s a connection between people being called and a growing opening into heaven.

Calling. It seems like it’s a hot topic in the halls of Wake Div. I’ve heard several conversations about calling around here recently. It seems most of the people aren’t sure if they’ve had a calling and the ones who are aren’t sure what they’re supposed to do with it. More than once since I’ve been here, I’ve been reminded of the main character in Penelope Lively’s book Judgment Day, a preacher who ended up being a preacher because of a typing mistake. The character, whose name is George Radwell, had filled out a form that got transcribed by a secretary before making its way to the high school guidance counselor, but instead of typing in the word “technical,” the secretary typed the word “theological.” During the meeting with the counselor, George had corrected the mistake. But he was struck with how much more respect he had been given by the counselor during the period of the misunderstanding. Within a day or two, he asked himself, “Why not?” and decided to pursue theological training. Lively writes, “He had been worried, before arrival at college, by his lack of either faith or calling, until it dawned on him that those, after all, were what presumably the course was designed to supply. Which indeed it did, more or less. He quite enjoyed it. Whereas [previously] at school he had been among the proletariat of the dim, the featureless, the unassertive, here he bloomed a little. There were others with greater inadequacies than his. By his second year he had found talent for debate and played snooker for the college against a rival establishment. He had also got drunk twice and put his hand inside the shirt of a friend’s sister. More importantly,” we are told, “he was bolstered by being a part of something larger than himself; he was no longer alone with his failings.”

I think a lot of us here can identify with poor George. We might have come here suspecting but not knowing we were called, and thought we would figure it out while we were here, but once we got here, we got swept up in the momentum of things, content to not be alone in our failings, and we never get around to deciding whether we’ve been called or not.

But I think we can do better than that, and I think these stories about Jacob and Nathanael give us a glimpse as to how. So let’s look at what these stories can tell us about calling.

First, in both cases, the calling was merely the renewal of a previous call. Jacob was called with almost the same words spoken to his grandfather, when God told Abraham to go outside and look up at heaven if he wanted to see what the future looked like. Nathanael’s, too, was the renewal of a previous calling. For one thing, Nathanael was a Jew, so he was heir to the promise of Abraham. Nathanael may also have been a follower of John the Baptist who migrated over to Jesus after John was imprisoned. So in at least one way and probably more, Nathanael experienced Jesus’ call as an echo of a previous calling.

For us, too, the calling is a renewal, a renewal of our call to baptism. We have all accepted the call to follow Jesus. The experience that got you to this place was just a later addition, but make no mistake -- you have been called.

Second, Jacob and Nathanael were not called alone, but rather they were called as part of a community into a community. Jacob was called along with his father and grandfather, and he was called into a new relationship of blessing between his progeny and the people of the world. Nathanael, too, was not alone; he was with a friend who invited him to meet Jesus, and he was called into community with Jesus and the other disciples.

Again, that applies to us. Many of us are called from the context of our family’s religious faith and the promises that have been made in that context. Others are invited by their friends, and even those who somehow arrived here without any Christian companions still had friends and mentors along the way.

And we, too, are called into a greater, deeper community. In several minutes, we’re going to celebrate the Lord’s Supper, and while this symbolizes our union with Christ, it also symbolizes our union with each other. First years, please hear me say that you are equal members of this community with us. In the act of the Lord’s Supper, we remember so that we, as a community, may be re-membered. And like Steven Fuller and Carolyn Ashburn who are graduates, you will be members of this community after you leave.

And third, as I mentioned several minutes ago, our calling is a promise. A promise that God will use us to bless others. A promise that we will be witnesses to the ever-greater acts of God’s salvation. Later writers would add greatly to our understanding of heaven beyond merely a vault for the waters. Now we think of heaven as the place of origin for God’s divine possibilities for all of creation. When things get better in ways there was little or no chance they would, that’s the work of heaven. And we, as a called people, get to be a part of that.

I want to put forward two models of calling. When I trained my dog to come when I call her, I first had to teach her to stay, and then as I gradually backed away from her, I would keep saying, “Stay. Stay. Stay.” And then when I said “Come” and she came, I would give her a treat. Through withholding treats and backing away, I taught her to come when I called. That’s the first type of calling.

The second type of calling I saw modeled a long time ago at a family gathering at somebody’s swimming pool. My cousin’s little boy was still at the age where every spring he would have to be coaxed to get in the water. First he had to be coaxed to get in the steps of the pool, then he had to be coaxed to get off the bottom step and into the shallow end of the pool. Later in the afternoon, I saw them putting him halfway up the slide and letting him come down into his dad’s arms. That took a while. Then, they put him at the top of the slide, and though he stayed up there a long time and almost came back down the ladder, eventually, he came down the slide. Finally, late in the afternoon, not long before dinner, they had the boy on the diving board, with his dad treading water in the deep end. “Come on, Chase,” they would say. “You can do it.” And he did.

And at various points in the afternoon, I would think to myself, why are they pushing that kid to do things he doesn’t want to do? But at the end of the day as they were headed for the car, I heard Chase say with excitement in his voice, “Wow - what a day! I got to do all the things I wanted to do!”

That’s how God calls us: not like me training my dog to come when I call by withholding treats and backing away from her, but like my cousin who patiently called his son into doing the things the son wanted to do but was afraid of.

“Okay,” you might say. “So we’re all called.” “What’s the big deal? That still doesn’t help me figure out what to do with my life, and if it doesn’t do that, then what’s the difference between being called or not?” Fair question. And it was Barbara Brown Taylor who helped me figure out the answer. Remember, I told you, the question Barbara Brown Taylor asks herself, “What was Bartholomew thinking?” Well, here the question is a little easier than in other places, and if you haven’t made the connection yet, blame the writer of John, for at least one theory that has been handed down in the church for hundreds of years is that Nathanael is another name for Bartholomew - and so the disciple most often placed in the margins is, in this story, the one singled out for attention. Apparently, the writer of John had so little respect for Bartholomew he didn’t bother getting the name right.

And the fig tree? According to midrash, rabbis taught and studied . . . under a fig tree. So the statement about the fig tree may have just been Jesus’ way of identifying Nathanael/Bartholomew as a “serious student seeking God’s way.” And while we might not put in the hours our professors would like us to, there’s not a person in this room who I think doesn’t qualify as a serious student seeking God’s way.

And so years later, when Bartholomew was getting no respect . . . when life got really tough . . . when his friends started getting killed, and when the writer of John paid him the petty insult of getting his name wrong, Bartholomew didn’t care -- he knew. He knew it was him who Jesus saw and called, it was him who witnessed the cracking open of heaven though the Son of Man. I bet until his dying day, he could always remember Jesus’ words, “I saw you under the fig tree” -- I bet that got him through a lot.

So, my sisters and my brothers, know that you have been called by God -- Jesus has seen you studying your Greek under the fig tree and he has called you. And don’t just know it. Claim it. So that when life gets tough, and I hate to say it, but when people in your life start dying -- and there’s no way around that part of life --you will know what you have been a part of. You will know that like Jacob, you have been a blessing. You will know that like Bartholomew, you have been a witness to the ushering in of God’s kingdom. And you will know that like my cousin Chase, you will have gotten to do all the things you showed up hoping you would get to do.

Amen.

Putting Cairo speech in context, it's straight down the middle

In the response to Obama's Cairo speech and the perception that it tilts toward the Arabs against the Israelis, it's worth noting that it is far less harsh towards the Israelis than statements made by Jim Baker, Sec'y of State under George I. From the Jerusalem Post:

In 1989, Baker ... stunned many by telling an AIPAC conference that "now is the time to lay aside once and for all the unrealistic vision of a Greater Israel. Israeli interests in the West Bank and Gaza, security and otherwise, can be accommodated in a settlement based on [UN Security Council] Resolution 242. Forswear annexation; stop settlement activity; allow schools to reopen; reach out to the Palestinian as neighbors who deserve political rights." Then there was his disparaging remark in Congress in 1990, when he said that when the Israelis were serious about peace, they should call the White House. "The telephone number," he said, "is 1-202-456-1414. (Link)"

Do what in remembrance of who? And why?

So you’re back! At a church, I could take that as some indicator that you liked my first sermon. Here, I make that assumption at my peril. Nonetheless, here we go.

Our text this afternoon is from the Book of Psalms, and before we read the text, I’d like to remind us all of a couple of features about what we have in the Book of Psalms. This book is a collection of Hebrew poems that often had liturgical significance for the Israelite people. And as to the features of Hebrew poetry, it’s worth remembering that Hebrew poems often use parallelism as a literary device, where the same concept or action will be stated and then stated again in a modified, sometimes intensified, form. Also, when the concept is repeated, the verb may be left out the second time, the writer assuming we’ll understand it’s the same verb that was used the first time. Having said that, let’s go to our text, Psalm 114:

In the going forth of Israel from Egypt, the house of Jacob from the babbling ones,
Judah became his holy place, Israel subject to his rule.

The sea, it saw and fled; the Jordan, it turned around backwards.
The mountains, they leapt about as rams; the hills as sons of the flock.

What is happening to you:
The sea, that you flee?
The Jordan, that you turn around backwards?
The mountains, that you leap about as rams,
The hills, as sons of the flock?

In the face of the master, you will twist and turn, land, in the face of Jacob’s God,
he who turns the rock to a water pond, the flint to his water spring.

So there. A beautiful poem, but nothing special, right? Your garden-variety praise psalm, trumpeting the “mighty acts of Yahweh” through a recitation of the Exodus, right? Well, maybe. But I would argue that there’s more here than meets the eye, both within the language of this poem, and as we’ll see later, in the role this text plays. Let’s start at the beginning. “In the going forth of Israel.” Some translations here say “After Israel left” or “When Israel left,” but I think a better translation of this phrase is “In the going forth” or “In the act of leaving.” So this isn’t about identifying a point in time but is rather saying that there was something about Israel doing this thing, this act of leaving, that triggered what comes next in the poem. What was it that Israel was doing in leaving Egypt and the babbling ones? The text doesn’t explicitly say, but I would argue that what Israel was doing was responding to what God always does, both for Israel in the Bible and for us in our daily lives: calling us out of captivity and chaos. And in answering this call out of captivity and chaos, the text says that the people of Israel were being transformed into God’s holy place and subject to his rule.

In the next stanza, the psalm turns its attention to the natural world. But did you notice, the poet doesn’t talk about any of the plagues that were associated with the Exodus? Doesn’t that seem strange for a poem about deliverance from Egypt? I would argue that at this point, the poet starts to lay his cards on the table: this isn’t a poem about the Exodus at all; it’s a poem about the wandering in the wilderness. Let’s think about this. The main phenomena mentioned in this poem are the sea, the Jordan river, and mountains and hills. The sea part is easy enough. We all remember that on their way out of Egypt, Moses led the people across the Red Sea. And some of you may also remember that later in the story, right as the people of Israel were finally entering the promised land, Joshua led the people across the Jordan River, walking across it as dry land in much the same way that they crossed the Red Sea at the beginning of the story. And somewhere in between the Red Sea and the Jordan River, towards the beginning, in fact, there was the giving of the law to the people at Mt. Sinai, accompanied by earth quakes and rumblings, which is what many commentators think the poet is referring to in describing the mountains and hills as “leaping about.“

In the third stanza, the poet repeats all the events listed in the second, but this time the poet poses the question, “What is happening here?” Then, in the fourth stanza, the poet answers that question: Somehow, nature is affected in ways that it has no choice over, when it is faced with, as the poet states explicitly, the presence of God, and, as we can infer from the overall poem, the faithfulness of God’s holy people. And look at the verbs. Nature doesn’t just change. The sea flees and the river turns around backwards, but in the next line, the mountains are leaping. Some translations even say dancing. And the specific verb used in the fourth stanza, what I have translated as “twist and turn,” it’s the second person imperative of the verb “chul.” The basic definition of this word can be to whirl, dance, or writhe. But it also has the sense of the birth pangs, as when Isaiah says, “Like a woman with child, who writhes and cries out in her pangs when she is near her time, so were we because of you, O LORD” (26:17). The verb here translated as “writhes” is the same, chul. So we know that it’s tumultuous, it’s some kind of action, but it is also a harbinger of creative action.

Lastly, in the final couplet of the poem, the poet reminds us of one more thing about what this God did for Israel during the wilderness wandering: he changed barren rock to life-giving water. And note, similar to the way that in the first stanza, the way Israel became his holy place and subject to his rule, by the end of the poem, we have the flint becoming his water spring, and this is the first time in the whole poem that we have the possessive pronoun “his” applied to some element of the natural world.

It’s really a beautiful poem, isn’t it? We have a vision of a people who respond to God’s call out of captivity and chaos, for whom the wanderings are the period of time, not when they were taking a detour, as we sometimes dismissively regard it, but rather when they were taking on their character as the nation of God. And we have a poetic vision of this nation-building as the catalyst for tumultuous, creative change for the rest of the natural world, which results in the world becoming both more life-giving and, not coincidentally, more clearly under the ownership of God. It echoes the promise that God gave Abraham all the way back in Genesis 12, when he told Abraham that he was being blessed so that others would be blessed through him.

So why are we reading this psalm on this day? Why have Jews for hundreds, even thousands of years told this story during Passover, and why would Christians want to tell this story right after Easter? You’ll remember, in my last sermon, I talked about how we are to take hope and comfort from the future, the anticipated eschatological consummation of all creation. But today, to answer the questions I just posed, I think we have to address the opposite issue, how we relate to the past theologically, how we relate to memory, and why we tell stories in the first place. I would put it this way: We remember and tell the sacred stories of our past to give shape and direction to the path of our discipleship. That means we never turn back to the past to stay there; rather, we remember the past to better equip us for going into the future.

Let’s stop and think about this for a minute, and it might be easier to understand if we do that outside the context of theology. Do you know some people who always try to live in the present? I know some people who at least say that’s what they are trying to do. But it has been my experience that many of the people who seek escape in the present are actually running from something, so that they are not living in the present at all, but always living in the past, trying to deny it.

There are also people who only speak about the future, but because they never ground their future in their past experience, their vision of the future is just a pipe dream, never coming to fruition. And then are the people who do think about the past, but they never integrate it into the present or the future. They just dwell in the past, never getting over past accomplishments or past failures. The writer Andrew Solomon writes eloquently about his own battles with depression. His mother suffered from depression, as well, and eventually took her own life. Before she killed herself, she said to her son, “Don’t let my death be the defining event of your life.” That was quite a gift to him, wasn’t it? I do not think she meant to say, “Do not ever think of me” or “Do not learn from what I am afraid I am about to do.” And I definitely do not think she meant, “Forget everything about me, including that I loved you.” No, I think that at least part of what she was saying was, do not let this event create such a gravitational pull on you that you live in the past, unable to look forward to and have hope for the future.

Returning to the theological, theologian Jurgan Moltmann sees remembering for Christians as absolutely fundamental to what we believe. He refers to studying the past as “prophecy in reverse” (Theology of Hope, 109) and says that we must tell our history “again and again” so that we can recognize in the past the love and faithfulness of God, but because that love and faithfulness is never completely used up, it continually spills into the future, guaranteeing a future of promise and blessing. But again, the idea is clear: we pause from our forward march through time, turn back towards the past, and are reminded of God’s promise and faithfulness, so that we may return to our future orientation with confidence and hope.

So, in the context of our Psalm, what is our hope, and what shape does our path of discipleship take? I would argue it has the following features: First, God always calls us out of captivity and chaos. In the Psalm, this was represented by Egypt and the babbling ones, but in our lives, this may take on many forms.

Second, it is up to us to respond to that call, but if we do, it will cement our character as God’s holy people, subject to his rule. I’ve come to believe over my life that it is the obstacles that we overcome that give our lives meaning. I would refine that in this context to say, it is the faithfulness that we show in overcoming our obstacles that give our lives meaning as Christians. Third, when we follow that call, the context of our lives, will be forced to accommodate our calling. It won’t have a choice. And, in many circumstances, this will actually mean that our surroundings change in ways that are experienced as creative and life-giving. If we are faithful to God, God will take the laws that have been rigidly determining our lives and make them leap about with joy. And God will take those things that are rocks in our path – and that can be people or situations or relationships – and he doesn’t get them out our way, but get this: he transforms them into sources of life for everyone around.

At this point, I’d like to remind us of something we hear all the time here in div school: our story is a part of God’s story, and God’s story is a part of our story. So with that in mind, I want you to think about your past, your own story of deliverance. Are you able to see God’s faithfulness there and take strength and hope from it as you go forward? If so, then TELL THAT STORY! Remind yourself and tell others.

And if you’re not in that good place, and right now, your past seems an unredeemable mess, because maybe you’re still living in captivity and chaos, then I want to invite you to see that God’s story is your story; THIS story, is YOUR story. This story of a transforming sojourn through the wilderness that gives shape to the ongoing path of discipleship, and which God is able to use to change creation from life obstructing to life giving. If you answer God’s call, you’re going to change the world.

We just celebrated Easter, and before that Good Friday, and before that Maundy Thursday, when Jesus had his last supper with his disciples. Do you remember what he said? We say it so often, it can become rote: do this in remembrance of me. He was anticipating the time when the present would be a memory, but it would be a memory that, if used as a source of hope for the future, would be absolutely transforming.

Near the end of Shakespeare’s play, Henry V, the king does something similar. The day is St. Crispan’s day, and the army is about to face overwhelming odds against the French army. In a stirring speech that rouses the men to victory, Henry describes a day in the distant future when people will look back, when the present will be a memory, and because of the glorious victory that he predicts for them, “men will count themselves accursed” who were not here with us.

For Henry, the transforming memory was a military battle, and that determines a particular path of discipleship. But for us Christians, we have the stories of the wandering Israelites who left their captivity and chaos. And the story of a messiah who gave himself as a sacrifice for us.

Remember these stories. These are your stories. Let them give you hope, and let yourself, and the world, be transformed as you live in to their glorious promise.

Amen.

A sermon for Mardi Gras

II Corinthians 5:5-12 (New Jerusalem Bible)

5 It is God who designed us for this very purpose, and he has given us the Spirit as a pledge.

6 We are always full of confidence, then, realizing that as long as we are at home in the body we are exiled from the Lord, guided by faith and not yet by sight;

8 we are full of confidence, then, and long instead to be exiled from the body and to be at home with the Lord.

9 And so whether at home or exiled, we make it our ambition to please him.

10 For at the judgment seat of Christ we are all to be seen for what we are, so that each of us may receive what he has deserved in the body, matched to whatever he has done, good or bad.

11 And so it is with the fear of the Lord always in mind that we try to win people over. But God sees us for what we are, and I hope your consciences do too.

12 Again we are saying this not to commend ourselves to you, but simply to give you the opportunity to take pride in us, so that you may have an answer for those who take pride in appearances and not inner reality.



First, I’d like to say how much I’ve been looking forward to preaching this sermon - until last night at least. Preaching is an ancient form of communication, and it’s an impressive heritage that we partake in when we do it. Even in the somewhat awkward context of preaching in class, I still regard this as preaching, and still regard it with some degree of apprehension and humility.

More specifically, it’s an honor for me to preach to you. Depending on what I do after divinity school, the only sermons I may ever preach are the two in this class plus maybe one my third year. But even if I get to preach more after divinity school, that will be different. So with your indulgence, I’m going to take advantage of the fact that I’m preaching to a group of divinity school students (and one professor). I feel like I can speak to you like family, and that you’ll hear me like family, that you’ll hear me in love.

I may take a few liberties with my language that I can’t expect to get to do later when I’ll be preaching to a more general audience. And while I’ll explain what I need to, I am going to presume a degree of familiarity with certain biblical and theological concepts. So I’m going to need you to keep up. Let’s get going.

First let’s talk about Paul. I don’t think there’s a single divinity school student who came thinking good things about Paul. Just two weeks ago, Greg Dover shared in chapel how he had confessed to Diane that he didn’t expect to like Paul, and during my time here, I’ve heard innumerable similar comments, so when Greg said that, I think he was speaking for a lot of us.

But I have to say, a lot of what we think we know about Paul, we don’t. I know I said I was going to presume some knowledge on your part, but in this respect, I think divinity school students are at a disadvantage.

Think about it. There’s nobody who’s been proof-texted worse than Paul. All the things we came to divinity school not liking about organized religion are generally things that Paul was cited for. There’s the normal stuff I don’t like about the church, like all semantic stuff that makes my head hurt (justification, sanctification) that can be attributed to Paul. But there’s also the very specific stuff that the church has gotten wrong, like slavery, and not letting women be ministers -- and the people who take these positions always cite Paul.

But let’s think about things from another perspective. For one, Paul was an itinerant preacher and missionary who had a tendency to become enamored with his rhetoric. I’ve always envisioned him dictating his letters to Timothy or another of his assistants and just getting carried away in his little flights of fancy. There’s no way he could have even anticipated that 2000 years later, people would still be using these letters of his to set up a whole elaborate doctrinal system

It’s also the case that, like our text today from Second Corinthians, that what we have in Paul is just one side of the argument. Paul had a long history with the Corinthians, and in this letter, he’s responding to some things that were said about him by a group of so-called “super-apostles.”

Now if you’re friends with a couple, and one of them comes to you and tells you about a fight they’ve had, you know you’re only getting one side of the story, and you know you can’t make any judgments about the situation until you’re heard the other side of the argument.

But here, we’re only got Paul’s side of the argument. So sometimes some of the things that Paul says sound a little weird or convoluted. But we have to remember, we’re only hearing his rebuttal -- we don’t get to hear the charges that were made against him that he’s responding to.

So I say all that to say, as we walk through the text together, I’m going to invite you to try to put aside what you think you know about Paul and to try to see this text with fresh eyes.

So let’s now turn to the text.

Now you’re like me, you look at this text as you see a bunch of typical Paul stuff -- none of it really grabbing you like a good piece of gospel teaching or old testament narrative. For me, this text includes a couple of the things I most don’t like about Paul. There’s the dichotomy - and I hate Greek dichotomies - about “being at home in the body and exiled from the Lord” versus “being at home in the Lord and exiled from the body.” And there’s the stuff about the judgment day -- Paul calls it coming before the judgement seat of Christ -- and I’m generally not wild about judgment stuff either.

But I’ve realized, in each of those cases, what I thought was going on was not what was really going on here, so let’s step back a minute.

This is one of Paul’s letter to the Corinthians, a church that he founded. But since then, it had really been a rocky relationship. The church has come under the influence of these super-apostles -- we don’t know a whole lot about them, and for our purposes today, we don’t need to know a whole lot about them, other than that they were trying to convince the Corinthians to stop listening to Paul -- and that they were being successful.

So here Paul is, hundred of miles away. He’s been through all these beatings and tribulations, and he still has to put up with this crap of people that he loves saying stuff that had to be so very hurtful for him to hear. He had to be feeling really personally hurt.

But it’s more than that, right? It’s not just him that the Corinthians were rejecting, it was the gospel that Paul was preaching. One of the things that I do really like about Paul is that he just had such a heart for preaching the gospel, of inviting people to see that the love of Christ is different than anything they’ve ever heard or tried, that they can be free of all the stuff that’s been holding them down, that they can live the lives they never thought possible, as the free children of God. And here the Corinthians just don’t seem to want to listen.

So Paul has a dilemma. How does he get them to hear the love and freedom of the gospel, how can he convince them that he’s right and those super-apostles are wrong, without making it about him. Because he knows he can’t do that. He’s come close: he’s tried to tell them all he’s suffered for the Lord, and about his conversion experience, and he’s tried to commend himself to them. But he knows he’s can’t cross the line. He can’t make it about himself.

At this point, I’m going to bring in a little theology. Jurgen Moltmann talks about the difference between expectation and anticipation. For Moltmann, expectations are merely the continuation of the present, the continuation of the possibilities inherent in the present. But anticipation is where we give up limiting ourselves to present possibilities and instead open ourselves to God’s capacity to infuse possibilities from the future into the present, from the future of the eschatological consummation of all creation. Do you see the difference? Because its huge. Its the difference between the continuation of our little separate stories and expectations (on one hand), and joining our lives to God’s story of redeeming creation, acting in anticipation of the fulfillment of God’s promise that has been inherent the whole time.

And I think that’s what Paul is doing here. He’s saying, he’s giving up on trying to meet the expectations of the Corinthians. He’s done. He’s through. Instead, he’s living in anticipation of being vindicated by God upon the eschatological consummation of creation. For Paul, the metaphor for eschatological consummation is judgment, he talks about the “judgment seat of Christ,” but it’s the same thing. One day, Paul knows God will vindicate him because God will see his true heart, and while he longs for the day when the Corinthians will be able to see his true heart as God can, he can’t do that for them. They’ve got to be able to see that for themselves.

In fact, I think the same thing is going on a couple verses higher in the text, in verses 6 to 9, where he sets up a dichotomy of this life, where we are at home in the body but exiled from the Lord, and heaven, where we will be at home in the Lord but exiled from the body. One level, he’s saying, for now it doesn’t matter where I am, my mission is still the same, to please the Lord, but there’s something else going on here too.

To understand what he’s talking about, and to prove my geek credentials, I’m going to talk about Tolkiens Lord of the Rings. For those of you unfamiliar with the plot, let me just say that two characters, Frodo and Sam, have gone on an adventure that has resulted in saving the world from evil, for the time being. But as a part of this adventure, they’ve each had to carry a particular heavy burden - in the story it’s called a “ring of power.” And this burden has created in them a restlessness, an awareness that there is another place, far away, that is their true home. And they both know they’ll never be happy until they get there. At the end of the story, Frodo and Sam say goodbye. Frodo has to tell Sam that though it is his time to go, to travel across the sea, it’s not yet Sam’s time to travel. During their goodbye scene, Frodo tells Sam he won’t always be torn in two. For now, he has a life to live, a family to care for, tasks to complete. But one day in the future, he’ll get to join Frodo in their true home, across the see.

I think Paul’s in the same place. He has this awareness in him that this world is not his home. But he also know that while his time has not yet come, he will not always “be torn in two.” He has more to do, and in the meantime, it’s that promise of eschatological consummation, of being included in the boundless love of the inner life of God, that keeps Paul going.

As I said, I’m talking to you like family, but we’re not just family, and we’re not a group of randomly assembled people, with a typical assortment of interests, hobbies, histories and futures. While many of us don’t know what we’re going to do in the future, most of us are going to engage in some type of ministry, whatever that “ministry” may look like.

So turning to us, you and me, we got into this because on some level, like Paul, we’ve experienced the burning fire that comes from experiencing the transforming power of God’s love and freedom -- or maybe, if not the fire even just the hint of the fire, the rich smell of a hearth fire burning somewhere in the vicinity -- and in an exciting varieties of methods, we want to convey that fire, that freedom to others. But we can’t do it for them, and we can’t make it about us. So how do we do it?

For one thing, we have to do ministry in anticipation of living in God’s love; and it cannot be about meeting expectations. Because I’m going to tell you, if its about meeting expectations, we’re going to fail. If it’s about meeting Professor Miles or Frank Tupper’s or Dean Leonard’s expectations, I’m going to fail. If it’s even about meeting my own expectations, I’m going to fail. And if it’s about meeting the world’s expectations, the church is going to fail. It’s going to close itself off from the action of God, and it’s going to try to sell itself to the world from a place of defensiveness and a need to be accepted and loved, and its going to fail. So it can not be about expectations.

Okay, so what does it look like for the church to act in anticipation of God’s eschatological consummation. To explicate this, I’m going to refer to a good Art of Min book, Generation to Generation by Edwin Friedman. In this book, Friedman describes how a good minister leads a church. He uses the phrase “leadership through self-differentiation,” but I describe it this way: “step back but stay connected.” If we as the church have a clear idea of who we are and what our mission in the world is - if we are self-differentiated from the world -- then if we do that, and if we stay connected to the world, not severing ties into some little fearful corner of life called “Christian culture,” then the world will see, communities will see, nations will see, church folk will see, and want to be a part of that.

And who are we? What is this mission we’re supposed to working towards? Well, some of you may have noticed that today is a particular day in the church calendar. Technically, today is called Shrove Tuesday, but most of us are far more familiar with its common name, Mardi Gras or Fat Tuesday. But the point is, today, we stand at the opposite end of Lent from the resurrection of Christ. And perhaps more important, we stand at the opposite end of Lent from the crucifixion of Christ. Because it wasn’t just anybody that God raised from the dead that Sunday, it was the one person in the whole word who had an understanding of God as his abba-father, and in exchange for trying to introduce that concept to the world, he got crucified for it, on a godforsaken cross.

What will it look like for you to live in anticipation and not expectation? I can’t tell you exactly, because I have no idea what kind of expectations you’re up against, either now as divinity students or later on as ministers of one stripe or another.

But I can tell you who we are, who we as a church are. Because at the heart of the crucifixion and resurrection is a really scandalous truth, and it didn’t meet the world’s expectations. By the world’s expectations, it failed. The truth is this: It is a cruciform God that we worship, and a cruciform kingdom that we work with God to create. And that’s a whole other sermon, and Lent isn’t even started, so there’s plenty of time for that.

But at the same time, I can tell you that it gets to be fun. Paul says we are to live “full of confidence.” Jesus said he came to give us “abundant” life, but I’m going to add it gets to be fun. As the official slogan of Mardi Gras says, "Laissez les bons temps rouler": Let the good times roll.

So in closing, let me say my wish for us, this Shrove Tuesday: that we as future ministers will be able to preach the gospel to the world without giving in to the world’s expectations, confident that we will not always torn in two, confident that God sees our true heart, hopeful that then others will see our true hearts as well.

Amen.

If McCain is Maverick, does that make Obama Ice Man?

I would not presume to judge the relative merits of the actual military need for 60 more F-22 fighter jets, as the Air Force has requested. (NY Times story here.) However, if, as I have read, that one of the reasons for granting this request is the desire to avoid the layoffs that would result from discontinuing this program, I do not consider this an adequate reason, and particularly in light of the downsizing we are rightly requiring from the Detroit car manufacturers, would be especially hypocritical. We are requiring GM to be honest about its plans for the future and to eliminate unneeded, bloated product lines, possibly including Pontiac, Hummer, and Saab. This is just good business and will help them move forward, but we should be just as responsible running our own government.

We have opted to have defense contractors which are independent from the government and are required to bid on projects -- as we should -- but a necessary consequence of this is that a contractor will have to downsize when scarce resources are shifted from one project to another. If we wanted to conserve jobs, we could just have one supplier, who then we would place orders with, and then the workers would just be shifted from one project to another. We have decided against this approach -- again, rightly -- but there are consequences. Otherwise, we find ourselves with an ever-expanding list of government defense contracts, unable to cancel any of them, outliving their usefulness like so many congressional subcommittees.

SCOTUS observations

The new order: Breyer, Thomas, Kennedy, Stevens, Roberts, Scalia, Souter, Ginsburg, Alito. That's the seating order, left to right, of the Supreme Court as it is currently constituted. It had been several years since I had used the perk of being a member of the Supreme Court bar to sit in on oral argument, but on Wednesday, the day after the historic election, I made it, and it didn't disappoint. My thoughts:

Breyer's comportment is little changed from the last time I saw him. He's moved from the far right to the far left of the dais, but otherwise, he's much the same. If anything, he seemed more comfortable engaging in extended colloquies with counsel than previously, but that may have just been the subject matter of the case at hand.

Thomas also seemed more comfortable. He often was engaged in whispered conversations with Breyer to his right or with Kennedy to his left, looking off a shared copy of a brief or exhibit with one or the other one. He seemed like he may have overslept that morning, as for the the first 15 minutes, he kept rubbing his face with both hands like a sleep-deprived middle-school boy in homeroom. Keeping to form, he asked no questions. (I've seen him speak during oral argument exactly once, which is probably the same number as many who sit in on arguments weekly.)

Kennedy -- no change. Engaged, but not excessive.

Stevens, again, little change. As a colleague remarked later to me, despite his years, Stevens seems as engaged in the work of the court as ever, even energized by it. If he's considering retiring after Inauguration Day, I saw no sign of it.

There's no doubt, as others have already observed, that Roberts is a natural fit at the center of the dais. Direct in manner, even-handed in his questions, he often has the look of bemused straight-man after one of his colleagues on the bench (most often Scalia) cracks a joke or dry witticism.

Scalia has seemed mellower (and more rotund) every time I've seen him. Despite his pit bull reputation, I've always thought that Scalia is a waterlogged attorney's best friend. Don't get me wrong, if there are holes in your argument, he'll point them out, perhaps to your embarrassment, but when I've seen lawyers get a deer-in-the-headlights look, Scalia is often the justice who will enter and say, "Isn't your argument . . .?" as a way to help the lawyer save face. That doesn't mean you've persuaded him, but he's not there to make you look bad.

Souter looks like he stepped out of Depression Era soup line. His gaunt features make me think of Tom Joad everytime I look at him. There are rumblings that he's tired of life on the court, but no signs of that Wednesday. If anything, I would think the prospect of having other progressives on the court will keep him hanging on for like-minded company.

Ginsburg is the one that worries me. She did ask a couple of on point questions, but she had the appearance of someone on high doses of morphine, which given her past bout of cancer, may not be far from the mark. I kept wanting to walk up to her and say, "Ruth, honey, it's okay, you can put your head down and take a nap." I know that she was close to Justice O'Connor. I would suspect that she was disappointed that O'Connor was not ultimately replaced by another woman. My bet is that Ginsberg is hanging on through the Bush years more to preserve the place of women on the court than the place of progressives, but that once Obama is in, she's out the door.

Lastly, Alito, restive Alito. Alito was agitated all morning. I don't know if he was annoyed at the drubbing his party had taken at the polls the previous day, ensuring that Alito will not be part of a uncontested conservative majority on the court any time soon, or if he's just pissed that the more temperate Roberts, who is only his senior on the court by 4 months (like being the younger fraternal twin) gets to run the show from the center of the stage while he's relegated to the right side hinterland, but somebody had clearly pissed in his cheerios. He absolutely couldn't keep still. He would rock in his chair, put his head back, turn completely away the argument to seemingly check a laptop to his left (Minnesota election returns? Dow Jones numbers?). Granted, he's isolated from the more cogent members of the court by his position to the right of RBG, so he's got no one to whisper to like the justices on the left do, but geez. When he would pay attention to the argument, he would get exasperated by that, too, asking questions of counsel with the implication, Stop being stupid. It was like dealing with a youth who is acting out in class because just before showing up, he was reprimanded by his parents for plagerizing on a paper. (And it could have just been me, but I felt like he was giving me the stink eye half the time, like when you've caught the eye of someone in a restaurant, and everytime you glance back in their direction, they're already glaring at you, insisting with their expression that you stop looking at them.)

It is striking, when you think about it. On July 1, 2005, Justice O'Connor announced her retirement, and on July 19, President Bush nominated John Roberts for the vacancy, but before the Senate returned to session and could begin hearings on the nominations, Chief Justice Rehnquist died on September 3, so Bush bumped up Roberts to replace Rehnquist, and Alito was tapped for the associate justice position. The rumor at the time was that O'Connor had discussed retirement with Rehnquist privately and was going to forego resigning that year if Rehnquist wanted to retire, to spare the court from two vacancies at the same time. Rehnquist informed her he was staying on, so O'Connor stepped off. This could have gone down a long list of different ways, but if Rehnquist has merely lived three months more, Alito could have been nominated to chief justice, or Bush could have nominated Scalia for chief justice, with Alito taking Scalia's seat on the bench. (I think it's unlikely that Bush would have nominated Roberts for chief justice in this scenario, since it would have entailed a completely new set of hearings for someone just a month or two from the first ones.) Instead, it happened as it did, and we got the best possible chief justice we could have hoped for under the circumstances.

The two cases I saw were Negusie v. Mukasey, No. 07-499, and Van de Kamp v. Goldstein, No. 07-854. Negusie was about whether there is a coercion exemption to a rule that exempts perpetrators of illegal discrimination or hate crimes from consideration for amnesty. It was a good argument to watch, as the questions ranged from the metaphysical (Breyer kept bringing up free will and Aristotle) to the more case specific (Scalia was the force in this direction). Alito just could not believe that counsel was asking immigration judges to add one more level to their analysis. Overall, while one or two justices seemed likely to clearly prefer one side or the other, I'd expect the decision to be at least 6-3 close.

The second case was a different matter. The plaintiff - respondent in this forum - was trying to get around prosecutorial immunity by alleging that failure to maintain systematic safeguards to prevent prosecutorial errors is not entitled to the same immunity that just doing the bad thing in the first place is, and the justices were having none of it. By the end of argument, the clear implication was that the justices had granted cert. just to overrule the Ninth Circuit, and frankly, the respondent's counsel wasn't particularly good. By the end, the justices had figured out there wasn't anything to be gained by engaging him, so they toyed with him just to pass the time.

My general observation from watching both arguments is that, for counsel, having a quick answer is not the same as having a good one. Several times, counsel would have been better served by more carefully considering the question a justice was asking him (there were no female attorneys arguing that morning) and by at least attempting to intuit the larger point that the justice was getting at. Instead, the attorneys just talked and talked and talked.

Second, I would remind all counsel: there's a crank on the right side of the lectern. If you're tall or short, use the crank to adjust the height of the lectern. Several counsel should have done this -- it's not only ergonomically efficient, it also telegraphs to the justices that you know your way around the business end of a lectern.

Third, know when to sit down and shut up. My dad taught me that when you've already got the judge on your side, stop arguing. During the second argument, petitioner's attorney had reserved time for rebuttals, but based on the treatment by the justices of the respondent's attorney, it was clear which side the justices were on. The petitioner's attorney should have just waived his right to rebuttal and sat down. He didn't hurt his case by using his rebuttal time, but he would have highlighted the superiority of his argument by just waiving his time.

I'll be sitting in again on Wednesday for a religious liberty case. Should be interesting...

Exit polls: post hoc in more ways than one

Despite the coalescing conventional wisdom, Barack Obama does not owe his election to the economic meltdown. In support of this nascent conventional wisdom, many commentators and pundits are citing exit polls that show 62% of the electorate said the economy was the most important issue in this election. But this premise assumes an unrealistic degree of self-awareness on the part of the electorate. That is, it assumes that people know why they voted the way they voted, but I'm not sure that's the case.

As this article in the NY Times makes clear, people often make decisions unconsciously. The conscious mind only comes into play to develop a post hoc rationalization for the action. I think it's a little more complicated than this, but this does capture an often overlooked aspect of the decisionmaking dynamic. In my days as a practicing lawyer, I wrote a lot of motions asking judges to dismiss cases (I was working for the defense). My theory in writing these arguments was that I was very seldom going to convince a judge to do something she wasn't already predisposed to do; I was only giving her the legal basis to rule in my favor if that's the way she was already leaning.

I think political races are similar exercises in decisionmaking. Arguably contrary to congressional and local elections, presidential elections are rarely about the issues. Instead, people give their vote for president to the person who is most charismatic and best looking. This is what they want to do, and they'll do that unless you give them a reason not to. Obama vs. McCain, Bush vs. Kerry, Bush vs. Gore, Clinton vs. Dole, Clinton vs. Bush, Bush vs. Dukakis, Reagan vs. Mondale, Reagan vs. Carter, Carter vs. Ford. Some of these match-ups are closer than others on the looks/charisma metric, but overall I think the trend holds.

In the contest between Obama and Hilary Clinton, Clinton's abrasiveness and garishness (make more stark through comparison to Obama's cool detachment) made Obama the favorite. Similarly, McCain's propensity for indignation and prickliness, not to mention his wan geriatric appearance, again worked in Obama's favor.

On a deeply unconscious level, people were always more likely to vote for Obama. On a conscious level, people just had to figure out why.

Doha round of GATT

Among the most important issues in the world right now -- right up there with the slog in Iraq, the rising power of China, and genocide in Dafur -- is the superlatively unsexy trade negotiations going on right now (or rather, not going on right now) in the Doha round of GATT talks.

One recent story about this is here:
"A Plan to Revive Trade Talks Is Offered at Forum," (N.Y. Times (TimesSelect), 28 Jan 2007)

You can read more in depth about the issue at these places:

From the Center for American Progress:
The Case for Reviving the Doha Trade Round (8 Jan 07)
Navigating the 2007 Farm Bill, Biofuels, and the WTO Doha Round (19 Jan 07
Doha Deal and New Farm Policy: Bold Action Required (30 Jan 07)

From the New York Times:
"Harvesting Poverty," An archive of editorials on the plight of farmers in developing nations (August through December 2003)

From wikipedia.com:
Doha Development Round

Also, here's a link to information about the documentary Black Gold which exposes the injustices in the global coffee trade. (To go directly to the official site, click the logo on the right.)

Don't try this at home

Four movies in two days: on Friday, Infamous and The Departed, and on Saturday, Factotum and Half Nelson. (That second double feature nearly wiped me out.) And to be honest, each of these, in its own way, is a "must see."

Without a doubt, the best acting was in Half Nelson, where Ryan Gosling's portrayal of a white, crack-addicted middle school teacher in a disadvantaged, black public school was a feat of nature. The only movie I can compare it to is Traffic, a movie I appreciated but never felt viscerally involved in. Whereas Traffic attempted to cover drugs on a global scale (a task the original British miniseries apparently pulled off more successfully), Half Nelson covers all the same themes in microcosm, within a single, devastating narrative, and by concentrating its dramatic energy on more limited terrain, it achieves laser-like intensity, and effect.

Factotum contains the best writing of the four. Its genesis in the short stories of Charles Bukowski is clearly evident in the punchy, poignant voiceovers by Matt Dillion playing Bukowski's fictional alter-ego. This movie bought to mind Jesus' Son for its depiction of the drifter class. The acting in this movie was also outstanding, and while I loved Marisa Tomei's acting -- she's never looked worse or acted better -- the scenes shared by Dillion and the always excellent Lili Taylor truly brought out the best in each actor. As his randy, clingy, dim-witted, on-again-off-again love interest, Taylor was simply amazing.

To compare Infamous and its lauded predecessor Capote, I can't top the Times' Tony Scott: "In general, Infamous is warmer and more tender, if also a bit thinner and showier, than Capote," though there are two things I would add that I don't believe have been noted in other reviews. The first is a line by Capote in correcting one his swans (a divine potrayal of Marella Agnelli by Isabella Rosallini) who persistently referred to Perry Smith as Terry: "It's Perry, dear. Like Antoinette?" I love it, and I didn't even get it until I got home and googled Antoinette Perry (the actress for whom the Tony awards are named). It struck me as precisely the type of pedestrian, arcane comment Truman Capote would have made, and so one of the truest nuggets in either movie about the man. The other thing to note is -- forget Sigourney Weaver and the rest -- the best portrayal of a swan in the movie comes from Juliet Stevenson playing Diana Vreeland -- she's virtually a whirling dervish. I've loved Stevenson since seeing her in Anthony Mingella's 1991 Truly Madly Deeply, and it's somewhat disappointing that she's unmentioned in most reviews and ads, even though the ads predictably tout Gwyneth et al. Ah well, at least they love her in England.

Which brings me to The Departed. I loved it. By the end, like many of Scorsese's movies, it's long left narrative realism for the realm of Shakespeare and Wagner. While many reviewers disagree, I believe the trilogy capped by The Departed (the other two being Gangs of New York and The Aviator), represent Scorsese at the top of his form. For this movie, the point of comparison is last year's Cronenberg, A History of Violence, insofar as one feels that much of the violence of the final act, though effective, is merely to advance the narrative in certain ways. Nonetheless, the acting by Matt Damon, and especially Leo DiCaprio is outstanding, as is Vera Farmiga as the love interest of both. Also unlike some reviewers, I found the late demise of one of the main characters truly affecting, stuck in my mind several days later.

Needless to say, I'm quite anxious to see the palate-cleansing The Science of Sleep later this week.

Faith fruitarians

In the movie “Notting Hill,“ Hugh Grant’s character is set up on a blind date. The friend who played matchmaker in setting up the date has the couple over for dinner, but just as they are about to eat, the blind date announces that she can’t eat the food that’s been prepared. She’s a “frutarian,” she announces. She explains that frutarians “believe that fruits and vegetables have feelings, so we think cooking is cruel. We only eat things that have actually fallen off a tree or bush - that are, in fact, dead already.” And in a hilarious scene, she refuses to eat the carrots because they have been, in her view, murdered.

Those of us who have gone on mission trips often say that when we go, we -- not just those we are there to help -- are richly blessed by the experience.

Now, I don’t want to strech this metaphor too far, but in our lives, we treat God’s blessings somewhat like the silly frutarian in the movie treated fruits and vegetables.

See, the blessings that we receive by engaging in acts of service are the fruit, and God has placed us in a bountiful orchard. And we walk through this orchard, picking up half-rotten fruit off the ground, saying, “Look how richly God has blessed us!” and God is standing there saying, “You’ve got to be kidding me!” If we would just lift our eyes up off the ground and look around, we would see all the beautiful fruit, ripe for the picking, that’s within our reach, and if we ask for it, God will even bring us a ladder.

Well, I finally asked for a ladder.

While I was on a mission trip this summer on the Mississippi Gulf coast, God called me into full time mission work. In about a year, I’ll be leaving the practice of law -- I know that makes me the envy of many of my lawyer friends -- and I’ll be attending seminary, and when I graduate, I expect to go into international missions.

I’ll keep you posted.

Watchmen

It is my contention that many on the left of American politics have never fully accounted for their role during the Cold War as Marxist-leaning communist sympathizers. Come on, we all know it's true. Conservative allegations that the universities of America were filled with professors who were shocked at the inequities of a free market system -- often because such a system failed to remuneratively acknowledge the academics' respective superiority and insight -- were largely on target. (Conservative charges about a "liberal media" are considerably more complicated by what it means to be a member of the press, poised in permanent opposition to the status quo.)

From this vantage point in history, totalitarian communism was the single worst thing that happened in the 20th century, even worse than the fascism that made the Holocaust possible. The "purges" and "reeducation" camps -- public relations scrims for forced starvation and work camps -- killed millions.

Even largely maligned wars such as Vietnam -- it's entirely possible that fighting a number of proxy wars (Korea, Vietnam, Latin American insurgencies), helped avoid a major confrontation between the Cold War powers. As bad as Vietnam may have been, both because of actual deaths and casualties during the conflict and because of the enormous trust chasm it opened between the American people and their government, an outright military confrontation between the western powers and the Soviet bloc would have been far, far worse.

But let's be clear: while liberals have failed to account for their sympathies during the Cold War, conservatives have failed to accept that while they may have been right about the evils of communism, the realpolitik McCarthyist tactics many of them loved had very little to do with communism's fall. Ironically, the fact that conservatives felt the need to resort to such tactics completely belied their repeated, jingoist assertions about the superiority of liberal republicanism and free market capitalism.

Communism failed because it was an inferior way to structure a government and an economy. It wasn't about who played the game of global strategy better.

It is any wonder that one of the the highest grossing Russian films of all time, Nochnoy Dozor ("Night Watch"), is about the fight between supernatural forces of good and evil, where the only difference between the sides is the name of the team but where there's no distinction in the tactics employed? What does it mean to be the good guys, when the only thing that makes you "good" is that you've labeled yourself so?

It may have been the case that the State Department was, in fact, as McCarthy apoplectically alledged, infiltrated with Communists. (I love the fact that in advance screenings of the movie "Good Night and Good Luck," viewers thought the person playing McCarthy was overacting; they didn't know it was archive footage of the man himself and not an actor.) So what? Communism still fell, not because of our counter-intelligence, but because our form of government is better.

Furthermore, while those tactics may have done little to help us win the Cold War, they were an undeniably corrosive force within our own society. To employ an analogy from medicine, it's like the widespread American practice of giving an antibiotic to fight a cold or the flu. The drug is going to do very little to defeat the pathogens -- the body will generally take care of this on its own -- but by killing off the good bacteria that are supposed to live in our gut, the antibiotic is actually going to make our digestive system more susceptible to opportunistic bad bacteria that otherwise wouldn't have found a place to grow.

The conservatives, because of their willingness, if not outright eagerness, to employ Machiavellian tactics, both domestically and internationally, are, like the "good" guys in Nochnoy Dozor, good only because they label themselves so. But because they label themselves "good" so often, and with a conviction and lack of irony impossible for their counterparts on the left, the American people have been largely persuaded.

The truth will out, and the rightness of policy choices will be revealed by history. You can call yourself "good" as often as the clock strikes, but that doesn't make it so.

For all their condemnation of "moral relativism," conservatives are clearly the most morally relativistic faction on the current political landscape, and the Bush family its absolute, if not ultimate, apogee. They don't believe something because it's right; something is right because they believe it.

Spread cheeks, insert cranium

In explaining the decision to appoint Tony Snow White House press secretary when Snow has recently made numerous comments critical of the President, an unnamed source said, "What better way to pop the bubble that people think there is here." (Link)

Right.

Because Fox News isn't part of the bubble.

Playing Bush's/the devil's (tomato/tomahto) advocate

We all have our opinions about the merits of Bush's decision to go to war. While I wasn't opposed to invading Iraq per se, I was suspicious of the simplistic mindset which seemed so prevalent among the pro-war crowd and their hubristic refusal to believe that this campaign will likely end just as tragically as similar campaigns have throughout history. Their universal response: "No, really. This time it's different. Why? Because we're the good guys."

At the same time, I admired their refusal to just throw up their hands and go along with the status quo, paralyzed by the potential consequences of any action which might disrupt the surface calm.

So as a mostly academic exercise, here's my assessment three years down the road of the arguments for (Scylla) and against (Charybdis) the Iraqi action that got us where we are today.

VALID ARGUMENTS FOR MILITARY ACTION IN IRAQ:

1: Saddam didn't yet have a nuclear bomb, but he was probably going to get one. There are those who correctly point out that North Korea and Pakistan are actually greater threats to American security than Iraq was pre-invasion, and that's probably an accurate assessment. However, precisely because those countries are further down the road in developing nuclear weapons than Iraq means that Iraq was, relative to North Korea or Pakistan (which both present far more complex if not intractable problems for international diplomacy), a "low hanging fruit." During the same time Bush decided to go to war in Iraq, there were numerous headlines about faltering negotiations with North Korea. I think Bush wanted to deal with Iraq before it became a problem on par with North Korea. (Of course, this same desire to nip a problem in the bud was behind Patton's desire to march to Moscow. Wouldn't Patton have loved his own President George W. Bush!)

2: 9/11, though unrelated to Iraq, lowered our tolerance for national security threats. Anyone with two brain cell to rub together (i.e., those not watching Fox News) knows there was no link between 9/11 and Iraq. (Bush has himself stated this, though Cheney still waffles.) But that doesn't mean that 9/11 didn't change the calculus we should use in weighing overseas threats to American security, particularly those coming from the Middle East. What 9/11 proved beyond dispute is that threats made against America by those on the other side of the globe must be taken seriously, and with that heightened awareness, it was perfectly appropriate to reevaluate the threat posed by Saddam's Iraq. If you are attacked by a neighbor's vicious dog, it's fair for you to be far more suspicious of any other dogs in your neighborhood manifesting vicious tendencies.

3: There was some intelligence that Saddam had WMD, and in the context of his previous invasion of Kuwait and the subsequent U.N. Security Council resolutions, the onus was on him to prove, to a satisfactory level, that he did not have WMD, not on us to prove he did. Of course, we now know that there were no WMD. But Iraq was in a peculiar situation, and in that sole case, the burden was on Iraq to show it didn't have WMD, not the rest of the world to show it did. Therefore, when Saddam kicked out the inspectors, we were justified in inferring the presence of WMD.

4: Continued inspections/sanctions were problematic. Saddam was only complying with the inspections because we had amassed a significant amount of military readiness in the area, at levels that were not sustainable over a long period of time. Furthermore, it was clear that Russia and France -- which Saddam, like a manipulative teenager who sets one parent against the other, had proved very adept at splintering from the United States -- were losing their resolve to continue the inspections which were negatively impacting thousands of innocent civilians (and costing those two countries money).

There was also a tautological aspect to the inspections/sanctions. As long as they continued, Saddam was not going to amass WMD, but the lack of evidence of WMD was being used by Saddam, Russia, and France, as justifications for their cessation, not for their indefinite continuation.

Lastly, the sanctions were, in fact, resulting in significant deprivations to the Iraqi civilian population, and there was an argument to go on and incur the more severe, acute deprivations associated with invasion and occupation if that would bring to an end the chronic deprivations associated with the sanctions and, of course, continued rule by Saddam himself. (Although the question, "Is the cure worse than the disease?" is always a valid one.)


SPECIOUS ARGUMENTS AGAINST:

1: Things are worse now. Well of course they're worse now, but the hope was to make things better in the long-term, with the understanding that they would probably get worse in the short-term.

Also, things are worse now compared to what, the state of affairs prior to the invasion? Well, perhaps, but that's not really the correct point of comparison, is it? The correct point of comparison is not the status quo ante, but instead, where we would be in the winter of 2006 had the United States not invaded in March 2003. It's not as if everything would have turned out just peachy keen except for that big bad George W. Bush.

2: No WMD (a BBC favorite). Well of course we know that now. The question is not what we've learned after the fact; the question is what was a reasonable belief in the winter of 2003, based on the available evidence and intelligence.

3: The United States must be opposed on the world stage (a French specialty). French opposition to the war seemed to be based on procedural, balance-of-power-type reasons, not substantive ones. That is, we all learned in high school World Civ. the significance of the "Balance of Power" doctrine in European history: the idea that when one of the big three powers in Europe (usually defined as England, France, and Germany) became too powerful, the other two would unite to oppose it. Of course, this doctrine presupposes that substance follows process, that when one power becomes too powerful, it necessarily becomes oppressive and therefore worthy of being opposed.

So in the runup to Iraq, we had France urging that Europe unite (behind French leadership, of course) to oppose a United States which, in the judgment of the French, had become too powerful. The French had already coined the word "hyperpuissance" (translated "hyperpower," a step above "superpower," Superman, Batman, et al. will be diappointed to learn) which they conveniently threw around during this debate.

The problem was, the French kept emphasizing that the U.S. needed to be opposed because it had grown too powerful, and yet they slid right over why the U.S. needed to be opposed on substantive grounds, even though there were plentiful bases for such an argument. The result was that their argument had more than a whiff of jealousy in it: what really irked them was that we had the power to go to war without global consensus and they (in contrast to their glory days of plundering Africa and Southeast Asia) did not.

After all, remind me again why the French need nuclear weapons? As much as anything, it seems merely to remind us (and themselves) that they used to be important.

4: No specific causus belli. This argument was largely used as a straw man by Bush's opponents. The problem is this argument fails to account for a situation where an accretion of circumstances and evidence justifies military action within a finite window of time.

5: No blood for oil. A conspiracy theory with a grain of truth, twisted.

In the sense that this statement accuses the U.S. of invading Iraq to plunder its oil resources like the old Colonial powers after gold and rubber, this statement is nuts. The idea that Bush, as former Texas oil man, wanted to invade Iraq to help his old oil companies is simplistic and ill-informed. If anything, Texas oil companies are aided by lower availability of overseas oil which drives up prices and makes it more profitable for them to explore domestic oil reserves, sources which the low oil prices we've enjoyed for the last five years have made financially unfeasible to exploit.

"Ah," you say, "but that's exactly what happened. The Iraq invasion has precipitated instability in the Middle East, which has driven up oil prices, which now has us talking more about domestic oil reserves." Well, opponents of the Bush administration can't have it both ways. Either the government was simplistic, naive, unprepared, and hubristic, or it's effective, prescient, nuanced, and nefarious. Either it dropped the ball on the Iraq invasion (as it did with Katrina preparation and aftermath), or it's all coming together under a brilliant, complicated, evil conspiracy. You've seen Bush on television: which do you think is?

Scientists, when they're formulating hypotheses, sometimes are forced to employ constants to represent certain unknown factors. Einstein himself employed a cosmological constant, which he later rejected as a lazy "fudge factor." (Einstein's constant was later resurrected by other scientists but has recently been called into question again, but that's another story.) That is, scientific constants often represent the failure of the hypothesis to fully account for the available evidence.

Likewise, in discussions of public affairs, conspiracy theories often serve the same role as scientific constants: you only have to resort to secret conspiracy theories to explain events when the available evidence is insufficient.

The main reason I've never bought in to the "blood for oil" conspiracy is I've never needed to. Given Bush's simplistic worldview of good and evil, and given his propensity for taking "decisive" (translate: heavy-handed and shortsighted) action, it's perfectly logical that he would make the choices which have lead us into Iraq, so I've never needed to resort to the Syriana-type of conspiracy others find attractive. It's merely the failure of many on the left to fully understand the implications of Bush's stated worldview that forces them to employ the "constant" of a conspiracy theory to bridge the gap.

Two last points on "blood for oil." First, of somewhat more significance than Bush's history as an oil man is Cheney's history with Haliburton. That doesn't mean Cheney favored invading Iraq to help Haliburton get military contracts (again, you don't need to go beyond the obvious macho swagger to explain Cheney's hawkishness), it just means that his perspective was skewed towards seeing things through the particular lens of a military/government services company.

And second, is oil irrelevant to American foreign policy? Of course not, and it never has been. As Ted Koppel explained in a February 24 N.Y. Times op-ed piece, oil has been a bedrock concern of American foreign policy for the last 50 years. Take, for example, the first Iraq War. Saddam invaded Kuwait and was threatening to invade Saudi Arabia. Does the United States militarily come to the aid of every invaded country? No. What's the difference between when we do and we don't? Well, among the factors is the nature of America's relationship with the invaded country, and America had a close relationship with both Kuwait and Saudi Arabia. Now, among the things which formed the bases for those relationships was those countries' status as close trading partners of the U.S., and of course, the commodity being traded was oil, a primary factor in American (and global) continued economic well-being. And to complain about this or to think it represents a conspiracy is to think God was conspiring against fat people when he created gravity -- it's not a conspiracy; it's just the way the world works.


VALID ARGUMENTS AGAINST:

1: The United States failed to exhaust diplomatic options. By definition, military action is always the result of failed diplomacy. Sometimes diplomacy fails, but more often it suffers from a paucity of imagination and an insufficient reluctance to incur human deaths and casualties. Bush, by his own admission, has no use for nuance; he's also overly enamored with macho swagger. It's hard to believe that even W.'s father couldn't have done better.

2: There was insufficient international support. In the face of international reticence, you don't just throw your hands up and act anyway; you build support, again, as Bush the Elder did.

3: The Iraq invasion squandered international support for American causes which resulted from our being attacked on 9/11. After 9/11, the whole world (except the notable exceptions, of course, of al Queda and the Taliban) were on our side. What did we do with that goodwill? Flushed it down the Iraqi shitter. (Actually, to go back to the French argument, that's probably for the best. Bush's squandering of international support ensured a counterbalance in global affairs to American intentions.)

4: The Iraq invasion distracted from war against the Taliban and search for bin Laden. Winning the war in Afghanistan is hardly a fait accompli (or, for that matter, a mission accompli). There continue to be significant challenges, complicated by the way Bush squandered international support for American causes (see # 3 above; it all comes together, doesn't it, at least in a negative way -- don't you just love negative synergies?).

OF COURSE, all of my arguments in favor of military action in Iraq are premised on the following:

1: An unbiased interpretation of available intelligence.

2: A competent plan for execution of the invasion, occupation, and extrication.

3: That it would be carried out without resorting to torture of "detainees." (A "prisoner of war" by any other name is still a ...)

4: That it was not motivated to ensure reelection and would not be used politically to hammer opponents as unpatriotic.

Yes, I know, what was I thinking ...

LASTLY, it's worth asking, why revisit the merit of any justifications for American military action in Iraq? Bush has stated he doesn't see the point. (Which is so out of character, given his overall introspective nature.)

Let me start by stating that even if one concludes we shouldn't have gotten involved in the first place, it by no means follows that we should pack up and run. As I've argued elsewhere, we still owe the Iraqis the duty to stay to the (increasingly likely) bitter end. We got them into this mess; we can't just desert them like rats from a sinking ship, especially when we're the rats that took control of the ship only to run it aground in the first place.

Nor, on the other hand, do I buy Bush's argument that there's no point in debating these rationales. His reasoning is patently self-interested. He doesn't want us going back to the old debates because, with the passage of time, his arguments look substantially weaker, even than they did at the time.

Instead, the reason to debate the way we got into this mess is it (hopefully?) helps us avoid similar missteps the next time round. After all, the future may sound a lot like the past, just switch an "n" for a "q." (Yes, I'm talking about the debate over when to knit Iraq...)

Short and Happy Life Department

So...

Dick Cheney calls up his hunting buddy and dependable GOP fundraiser Francis Macomber ...

Deconstruction, 2008, and Madison's genius

Among the most misused words in current mainstream discourse -- other than "Christian" and "family values" -- is the word "deconstruction." When posers say something like, "Let's deconstruct this," what they really mean is, "Let's analyze this"; what they almost never mean is, "Let's figure out how this text undermines itself, particularly with regard to power hierarchies," which is what deconstruction would really entail.

(As a digression, I love this quote from Wikipedia which explains why the entry on "deconstruction" needs rewriting:

The article in its current form is a patchwork of occasionally contradictory points which does not attempt general coherence and therefore poorly represents the subject matter and utterly fails to provide a general overview for the benefit of the vast majority of readers.

I would argue that such an entry represents the subject matter perfectly.)

One of the ideas at the heart of deconstruction is an inversion of primary and secondary. If, for example, the designation of a particular object or theme as "primary" depends upon supporting "secondary" objects or themes, then the fact that the primary object is dependent upon the secondary object would seem to imply that the dependence of the primary object actually makes it secondary, and vice versa. That is, if a monarch is not a monarch without reference to subjects, then who is dependent on whom, who is primary, and who is secondary? "Deconstruction" doesn't attempt to relabel the objects; instead, it's merely concerned with pointing out how any label is simultaneously accurate and not.

And believe it or not, it turns out deconstruction can be useful when looking at political issues. Most if not all political issues can be characterized as procedural or substantive. Substantive issues, like abortion, gay rights, ANWR, and Social Security, get people very excited. Procedural issues, like judicial appointments, regulation of 501(c)(3) organizations, and Senate rules on cloture votes, get all of 0.5% of the population excited. Accordingly, we can say that most people consider substance primary and process secondary.

Actually, most people are modified Machiavellians: they may not believe that the end always justifies any means, but they believe that a valid and virtuous end justifies most means. And to go further, the end doesn't merely justify the means, it redeems the means.

But when a politician, to win the battle of the day, alters the ground rules to achieve the desired result, the ground rules remain changed at the end of the day. A precedent has been established, and a system that is unfair and prone to manipulation will, over the long-term, most often yield unfair results.

To put it another way, what people don't grasp (but deconstruction teaches) is that process often determines substance, or at the very least, sharply curtails the set of potential substantive outcomes. Take, for example, the issue of campaign finance reform, a classic example of a procedural issue. Campaign donations may not directly change a legislator's vote (though, as Jack Abramoff knows, they may). But what everyone admits is that campaign donations guarantee access to the legislator to make sure your position is heard, and there are no procedural safeguards to ensure those on the other side of the issue have equal time or access to the legislator -- and that's assuming there's only two sides to the issue. If there's more, you can forget about each side getting equal time. It's one thing when chamber of commerce-types give to Republicans and labor unions give to Democrats (although, again, most issues regarding globalization have more than two sides), but what's going on when Ernest and Julio Gallo and Archer Daniels Midland are among the biggest donors to both parties? Are we to assume that they are throwing their money away? Or if not, what are they getting in return?

In the judicial branch, communications with a judge by only one side of a lawsuit outside the presence of the other side are called ex parte and are expressly forbidden, because we understand that one-sided explanations of issues, no matter the intention of the judge to stay unbiased, do not produce fair results. Whatever its faults, at least the court system gets some things right.

So campaign finance reform isn't just another substance issue like, say, education. Instead, like most reform measures, it's a procedural issue -- a meta-issue, even, in the sense that it affects every other issue across the board, from international trade policy to what food is served in school lunchrooms.

The relationship between substance and process, and which is primary and which is secondary, will affect how the 2008 presidential election plays out, as well, as the aspirations of John McCain depend upon his getting the American public more excited about process than substance.

Many Americans seem hungry for someone like McCain. They're weary of the rigid adherence to prepared talking points and scripted "impromptu" town meetings ("Potemkin village meetings," perhaps?) that are the hallmarks of the Bush administration. But the problem is, where does McCain get his political backing when his entire persona is premised on eschewing the special interests that have taken over the political process? In political shorthand, McCain just doesn't have a base.

On one hand, McCain seems unlikely to garner the majority of the Republican vote because he would limit the role of both religious fundamentalists and big business, the current twin towers of the Republican party. On the other hand, some of the most liberal people I know, when McCain's name is brought up, say, "Yeah, I wouldn't mind John McCain as president." But these people are unlikely to vote for McCain due to his positions on substantive issues.

If Americans were to wake up one morning and John McCain were president, he would enjoy overwhelming popular support. The question is, how does he get elected? By explaining the importance of procedural reform? Not likely.

The irony is that while the American public may not understand the importance of process, the very fact that our country is in its 230th year is directly attributable to the fact that James Madison, the primary author of our Constitution, understood it intuitively. The genius of the Constitution is that the original document itself (not counting amendments) contains almost exclusively process and no substance. The Constitution outlines the three branch structure of our federal government. Even its few token substantive strokes are cast in procedural terms of powers granted or denied the various branches of government.

The daringness of this was unsettling from the start; to assure passage, the hastily written, substance-ridden Bill of Rights was tacked on to mollify the insecure. But Madison understood that the primary long-term threats to the United States would come from procedural flaws present from the beginning whose impact would magnify as the nation matured and expanded. In the Federalist Papers, Madison described factionalism as the major threat to the nation and purposefully structured the government to constrain the power factions, both geographic and ideological, would have in controlling the course of our country. Madison understood that factions would never be eliminated, nor should such elimination even be a desired goal, as ideological homogeneity would never be attained. On the other hand, it was important to keep the various factions in check so that disagreements would never become deep enough to form the basis for schism. With Enlightenment optimism, Madison believed that if we got the process right, the substance would work itself out, and he has largely been proved correct.

But if the only base that McCain is left with is the one that understands deconstruction, (and unless the MLA has untapped political prowess or Stanley Fish makes a better campaign manager than I'm guessing), the Senator from Arizona can check his ambition at the cloakroom door. The substantive ur-platform of "bread and circus" seems to work every time. Rome is still an empire, right?

You got us into this mess...

Health and Human Services Secretary Michael Leavitt, regarding the new Medicare drug program:

When there's change, there's an opportunity for things to go wrong, and we're fixing them, one pharmacy, one beneficiary, one state at a time. (Link.)

How about two pharmacies, two beneficiaries, or god forbid, two states at a time?

Is this a trick question?

Regarding the new bin Laden recording:

MR. McCLELLAN: And as I indicated, clearly, the al Qaeda leaders and the terrorists are on the run. They're under a lot of pressure. We do not negotiate with terrorists. We put them out of business. The terrorists started this war, and the President made it clear that we will end it at a time and place of our choosing. (Link.)

Uhhhhhh, can I choose "now"? As for place, Fox News headquarters wouldn't hurt my feelings.

He praises Reagan, but Nixon would be proud

When President Bush recently signed into law the so-called "ban on torture" bill which had been championed by Sen. McCain, Bush simultaneously issued a "signing statement," a memorandum of sorts which makes explicit Bush's understanding and interpretation of the bill he was signing. (Significantly, this is a practice proposed by Judge Alito when he was working in the Reagan Justice Department. Link .) The practice is intended as the Executive Branch's equivalent to the legislative history compiled during a bill's passage through Congress, paperwork which, when the bill is being interpreted by the judiciary, constitutes what's referred to as "persuasive" but not "binding" authority. And, at first blush, one is sympathetic to the Executive who, heretofore without an analog to legislative history, feels shut out of the interpretive process. After all, each of the 3 branches is considered co-equal.

But of course, co-equal is not the same as overlapping or interchangeable, and when one considers the respective roles of the 3 branches, the signing statement is revealed as a charade, an attempt to usurp the roles of the other 2 branches.

This isn't rocket science -- just take a look at the names of the branches. The President is the head of the Executive Branch, Congress is the primary member of the Legislative Branch, and of course judges are in the Judiciary Branch. Accordingly, Legislative writes the laws, Executive carries out the laws, and Judiciary interprets the laws. But obviously, this president isn't content with the constitutional boundaries on his powers. He wants to take over the roles of the other two branches as well, and the practice of issuing signing statements with every bill is an effective long-term tool in doing so. It infringes on the Legislative Branch by attempting to increase the president's power over the drafting of legislation, and it infringes on the Judiciary Branch by attempting to give the president more of a role in the interpretation of laws.

But instead of seeking to aggrandize his role in the legislative process, he ought to be glad he has any role at all. Several state governors lack the significant veto power (link) which the President regards as the starting point of his role in passing legislation, instead of the ending point the Founders intended.

Ironically, the President has repeatedly tried to minimize the role of the Senate's "advise and consent" role in judicial nominees, chastising the Senate that they should restrict their role to "an up or down vote." But when it comes to the mirror image of that relationship in the passage of legislation, where the President's role is not even "advise and consent," but merely "consent," he's seeking to expand his role beyond its traditional boundaries.

Correctly understood, presidential signing statements aren't the analog of congressional legislative history; they're merely the analog of congressional non-binding resolutions, where Congress tells the President what they wish he would do in areas where they have no power to direct or constrain executive action.

In a misguided attempt to emulate the British prime minister's role in Parliament, President Washington visited Congress and attempted to insert himself in the discussion of legislation. Quite simply, that went over like a lead balloon, with the legislators refusing to continue their discussions until Washington quit the premises. Bush's attempts to influence legislation are less overt but more insidious, and likely, ultimately more successful.

And with this president, signing statements aren't an exception; they're evidence of a rule. The President has consistently chafed at judiciary oversight, arguing that when it comes to national security issues, there is no place for judicial review, and that the courts should simply defer to his judgment and stop asking questions. And it will fall to this same judiciary, ultimately, to decide how much weight to accord the President's "signing statement", if any.

The correct answer is none. President Bush has taken the traditional role of presidential “bully pulpit” and dropped the “pulpit.” He hasn't just wrapped himself in the flag; he's using it to upholster his throne.

To all those who eat at Belshazzar’s feast: Beware the writing on the wall

Spurred by the release of the new Narnia movie, I was rereading the last book of the series, The Last Battle. In the opening section, a dumb donkey and his "friend," a manipulative ape, discover a lion skin floating in a pool of water. The more able and agile ape manipulates the clumsy donkey into jumping into the cold, churning, dangerous water to retrieve the skin and then discloses to the donkey the scheme he probably started hatching the moment he saw the skin. He talks the donkey into putting on the skin to pretend to be Aslan, ruler of Narnia. Though, in fact, the lion skin-covered donkey won't look anything like Aslan to anyone who has seen the lion ruler himself, the ape correctly surmises that most if not all of those who see the rouse will be taken by it. The donkey objects.

"But I don't want to tell them anything."

"But think of the good we could do!" said Shift. "You'd have me to advise you, you know. I'd think of sensible orders for you to give. Any everyone would have to obey us, even the King himself. We would set everything right in Narnia."

"But isn't everything right already?" said Puzzle.

"What!" cried Shift. "Everything right? -- when there are no oranges or bananas?"

"Well, you know," said Puzzle, "there aren't many people -- in fact, I don't think there's anyone but yourself -- who wants those sort of things."

"There's sugar too," said Shift.

"H'm, yes," said the Ass. "It would be nice if there was more sugar."

"Well then, that's settled," said the Ape. "You will pretend to be Aslan, and I'll tell you what to say."

"No, no, no," said Puzzle. "Don't say such dreadful things. It would be wrong, Shift. I may be not very clever but I know that much. What would become of us if the real Aslan turned up?"

"I expect he'd be very pleased," said Shift. "Probably he sent us the lionskin on purpose, so that we could set things to right. Anyway, he never does turn up, you know. Not now-a-days."

The liberals took up Bill O'Reilly's bait, so this was the Christmas of the "War on Christmas." And all I can say is, Bill O'Reilly is a manipulative ape who's headed towards hell. How dare he so snidely and with such affected self-righteousness take the holiday dedicated to Jesus Christ's birth and turn it into a tool for furthering O'Reilly's divisive, self-promoting, hate-mongering agenda. He has sanctimoniously clothed himself in the skin of the lion to issue marching orders to those too stupid to know the difference. He has brazenly taken the Lord's name in vain in becoming a self-labeled "defender of Christmas" only to betray everything Jesus stood for.

To Bill O'Reilly, Repent, for the kingdom of heaven is at hand. You lead people astray and are a modern-day whited sepulcher.

And to those who mindlessly allow themselves to be manipulated by O'Reilly's rhetoric, know that the comfort of your willful blindness is not without consequence. "Anyone who has ears for listening should listen." God has given you a mind to figure things out and a heart to discern what is of God and what is not. In refusing to use these gifts, you may not fare any better than the servant who took his talent and buried it in the ground. We are to be innocent as doves, but also as cunning as serpents. If you can listen to Bill O'Reilly and not see him for the lion skin-covered ass that he is, you're not being very cunning, and you've buried your sense in the ground.

At the end of the story, Aslan does, indeed, turn up again.

So one more time: Repent -- for the kingdom of heaven is at hand.

The morning after, the status quo ante isn't an option

My favorite version of the old joke goes like this: Guy gets lost, comes up to a service station, goes inside, and asks how to get to his destination. Service station guy responds, "Well, you wouldn't want to start from here."

I'll be the first to admit my knowledge of the Vietnam war is vastly incomplete, but of the little I know, among the unnecessary tragedies of the war is the way we withdrew. When it finally got through to the U.S. leadership that there was not sufficient domestic popular support for the war, we withdrew immediately.

Now, one of my primary goals in life is to moderate the effects of my personality on others; at the very least, it is incumbent upon me to insulate others from the negative consequences of my actions. It was bad enough the way the U.S. got involved in southeast Asia (and what the U.S. did once it got involved), but U.S. leaders ended up trying to pull an Emily Litella (a recurring Gilda Radner character on SNL) and just say, "Nevermind." The line of control had stayed mind-numbingly consistent for a long period in the war, and everyone expected the U.S. to withdraw in a way that would preserve that, but instead, in the U.S. haste to get-the-hell-out-of-Dodge, we completely hung our South Vietnamese "allies" out to dry, and South Vietnam collapsed virtually simultaneously with the U.S. withdrawal.

There are some strong arguments that we shouldn't have invaded Iraq in 2003. And as much as I believe in the legitimacy of reexamining the intelligence (in several senses) and the reasoning which supported going to war, it remains the fact that we invaded Iraq. Prior to the invasion, Thomas Friedman of the N.Y. Times was fond of saying that if the U.S. invades Iraq, then we own it -- that is, the fate of Iraq becomes our responsibility and we cannot simply tire of it when it gets unpleasant or boring, like an eight year old on Christmas afternoon -- and of course, that's exactly what has come to pass. We own Iraq, and while it's perfectly responsible to question why our leaders got us there, why we've done what we've done since we've been there, and how long we'll have to do it, it is vital that we remain there as long as needed -- specifically, as long as there is marginal utility in doing so.

To my last cell, I cannot stand George W., but among the reasons that I wasn't completely dejected over his reelection was that I knew that there would be mounting pressure to quit Iraq, and that while Kerry affirmed the logic of staying to finish the job but no longer, I knew that he would be more susceptible to the political pressure to leave prematurely, and that the timing of our departure from Iraq was perhaps the single most important issue in the last election. Eventually, once the casualties started to mount, it would become politically acceptable for the Democrats to criticize Bush on the war (as it wasn't completely at the time of the election), and the Democrats, desperate to press any political advantage, would decide to push to leave sooner rather than later.

Sure enough, that too has come to pass. The Democrats, again with some justification, are arguing that it was a doomed mission from the beginning and that because the overall costs of the war outweigh the overall benefits, we should withdraw as soon as logistically possible.

But it bears repeating: we're already there, and at this point, calculations of net benefits vs. losses are, to my mind, irrelevant. We own Iraq. We are responsible for the current state of Iraqi affairs, and so as long as there is marginal utility in our continued presence in Iraq, we must stay. We took upon ourselves to act for the benefit of Iraq, and just like an individual who has a fiduciary responsibility to an invalid and must, upon entering in to the fiduciary relationship, agree to place the invalid's interests above his own, we must look not at whether it is in our interest to stay, but whether it is in the interest of the future of Iraq, and unfortunately, for the foreseeable near-term future, it is.

Cogency and consequences

Politicians are deserting President Bush on Iraq. But much of Bush's difficulty in maintaining support on this issue, both among politicians and with the American public, is directly traceable to the short cuts Bush took in arguing for the Iraq invasion in the first place.

In law school, "Trial Practice" is the class where students are taught how to properly try a case in front of a jury. This part of legal practice is literally the tip of the iceberg -- it's the small fraction of legal practice that is visible to the public, but it's not necessarily representative of what most lawyers do, and it's not even representative of how lawyers usually argue.

When a lawyer makes an argument to a judge (e.g., in written briefs during appeal), it's perfectly permissible to make the following points: (1) my client isn't guilty because he was out of the country; (2) even if he was in the country, he had no reason to do it; (3) he might have done it, but you can't prove it, because the gun with his fingerprints isn't admissible; (4) even if you can prove he did it, he's not responsible because it was a crime of passion ("HOPSAP" in legal lingo, for "heat of passion with sudden adequate provocation"); (5) whether he did it or not is irrelevant, because the trial was impermissibly tainted by bias by the presiding judge; etc. ad infinitum. In other words, it is perfectly permissible to make a series of mutually exclusive arguments, any one of which, if it wins the day, is a sufficient basis for obtaining your desired result.

But in "Trial Practice," we were taught to never make these types of arguments to a jury. As my professor used to say, "You can't ride two horses at once. Pick one horse and ride it." The reason for this is juries believe -- somewhat quaintly -- that the purpose of the judicial process is to determine the objective truth of the matter, and if you lawyerly propose mutually exclusive theories of the case, by definition at least one of these theories is false, so you lose credibility with the jury for proposing something that isn't "true."

A corollary of this rule is that even if you've settled on a single theory of the case, you'd better make sure all your supporting evidence is accurate, because if you introduce even a single piece of evidence that is later proved to be false or inaccurate, the credibility of every other piece of evidence will be tainted by association, and you'll likely lose your case. At the very least, you'll have to spend valuable time and resources attempting to rehabilitate the credibility of your remaining evidence, perhaps fatally distracting the jury from the main points of your case in the meantime.

This second rule is most frustrating for lawyers when even after the disputed evidence is eliminated, sufficient creditable evidence remains to support their case. The way to prevent this to look at all the evidence which supports your argument, rank each piece of evidence according to its respective credibility, and use only enough evidence to support your argument and no more. That way, you don't risk having your entire case undermined by padding your case with a piece of evidence you didn't really need whose credibility is later called into question.

Think of how when the memorandum regarding Bush's National Guard time in Texas relied on in the "60 Minutes II" report was revealed to be "creatively duplicated," or forged (though Mary Mapes now contests this and continues to assert its authenticity), no one cared that the content of the memorandum remained uncontroverted. Instead, CBS lost credibility and was never able to steer public attention away from the forgeries and back to the substance of the report.

Similarly, in the O.J. Simpson trial, once Mark Furman was revealed to have lied on the stand when he denied ever using a racial epithet -- something completely unrelated to whether Simpson killed his wife -- Furman's credibility was destroyed with the jury, undermining his testimony which was actually relevant.

* * *

There's an old saying: If all you have is a hammer, you'll see every problem as a nail. The Bush administration has often seemed to have only two solutions in its policy toolbox: cutting taxes and invading Iraq. If the economy is doing well and the government is running a budget surplus, they want to cut taxes to return the money of the American people. If the economy is doing poorly and the government is running a deficit, they want to cut taxes to spur spending. We've learned conservatives always want to cut taxes, and they will twist economic realities and arguments so that the solution to any economic problem is to cut taxes.

Similarly, after Bush came into office, deposing Saddam was his administration's one-size-fits-all foreign policy solution. As far as Bush was concerned, particularly post-9/11, there were 20 good reasons to invade Iraq. And the key thing is, he didn't feel compelled to convince a majority of the American public of any single reason to invade Iraq; instead, he was content to use a panoply of niche arguments. Just like in a presidential election, where a candidate is happy to give each of 10 different constituencies a different reason to vote for him (e.g., a Democratic will make to pitch to union audience, a different pitch to soccer moms, and a still different pitch to Iowa farmers), Bush thought he could throw out 20 different reasons to invade Iraq, and as long as a majority of the American public was persuaded by one of them, it didn't matter if some rationales for invasion were mutually exclusive.

The reasons for invading Iraq have included at one time or another: (i) Iraqi officials may have been involved in planning the attack on 9/11; (ii) even if Iraq wasn't involved in the planning, its leaders had connections to Al Queda and probably had advance knowledge of the attack; (iii) even if Iraqi leaders didn't have knowledge of the attack, they had provided resources and training to the terrorists; (iv) even if they didn't provide resources and training, Iraqi intelligence officials had met with the terrorists and one of the terrorists had obtained medical treatment in Iraq (this justifies invasion?); (v) even if Iraq wasn't directly, or even indirectly, connected to the 9/11 terrorists or Al Queda, Iraq was still a "haven" for terrorist activity (if it was a "haven" before, what is it now?); (vi) even if it wasn't connected to terrorist activity, Iraq had weapons of mass destruction and was a threat to regional stability; (vii) even if Iraq didn't have WMD, our good faith but mistaken belief was justified, and everybody else believed it, too; (viii) even if we didn't have good reasons to believe they had WMD, Iraq had failed, by kicking out the weapons inspectors, to prove that it didn't have WMD, and after the first Gulf war, the burden was on Iraq to prove it didn't, not us to prove it did; (ix) even if we should have known Iraq didn't have WMD, they wanted to have WMD; (x) Saddam was a bad guy and committed human rights abuses on his own people; (xi) we're not there to "nation build," we're there to liberate, and the Iraqis will build their own nation; (xii) maybe we're there to nation build, but there's nothing wrong with that. (And add on the unspoken political calculation (now not only laughable but both ironic and tragic) that the Iraq war was viewed as more tangibly winnable than the war on Al Queda and the capture of bin Laden.)

Now, some of these justifications are more reasonable than others, but there is clearly no overall consistency to the argument. And it certainly didn't help matters that one day after Bush would admit that there was no reason to believe Iraq was connected to 9/11, Cheney would publicly state that the lack of evidence didn't prove the lack of a link, like a conspiracy theorist for whom the lack of evidence of the conspiracy is merely proof of the insidious effectiveness of the conspiracy.

But instead of the multiplicity of reasons to invade Iraq having a cumulatively reinforcing effect as the invasion apologists intended, all it conveyed was that the Administration was hedging its bets with regard to any single reason, as if they themselves weren't convinced of the truthfulness of any of them. One is left with the impression that the Administration was generating smoke to depict Iraq in its worst possible light and simultaneously telling the public, "Where there's smoke, there must be fire."

And of course, we know how the story of the invasion ended. The Bush administration presented these various justifications for invasion to the public, in violation of the first rule from Trial Practice described above. The critics responded that none of these reasons met the criteria of a "casus belli." So the Administration, acting in its search for a "casus belli" like a traffic cop looking for an excuse to pull over a reputed drunk for DUI and who sees the "drunk" with a broken taillight, beefed up the evidence of WMDs and made reasonable but controverted interpretations of intelligence appear not only unequivocal and undisputed but dangerously imminent. And to bolster the conclusion that Iraq was on the verge of using WMDs, the Administration had Colin Powell make an everything-but-the-kitchen-sink speech that included evidence whose credibility was likely to be later disproved, in violation of the second rule from Trial Practice described above.

None of this establishes the rightness or wrongness of the invasion. But it does make clear that based on the way the Bush administration got us into this mess, it was almost inevitable that the wheels would fall off whatever public and international support for the invasion existed in the first place. Bush may rail against trial lawyers, but he sure could have used a good one as an advisor in the fall (or the "Fall") of 2002.

MBA or MBS?

As we have learned more about Harriet Miers since her nomination, we can now glean several important points from Bush's selection of Miers for the Supreme Court and his implied belief that she is qualified for the court.

It's helpful to remember that Bush is not trained as a lawyer. His main experience with lawyers has been on the receiving end of their advice, and it's no coincidence that in selecting Miers, Bush selected a person who has personally represented him. He's not trained as a lawyer, and -- being Bush and not having any intellectual curiosity about fields he doesn't have to know about -- he doesn't know what goes into forming legal reasoning. He's been a consumer of a legal product, but he has no idea how that product is produced.

What Bush is trained as is a manager, and it's clear he believes that's a suitable model for a Supreme Court justice. To him, there's no reason for a justice to have reached any particular conclusion regarding a legal issue, just as for Bush, there's no reason to have already studied and reached conclusions regarding any particular policy position. All Bush does (and is oddly proud of only doing) is consume bullet point memorandums by his aides, assure himself that the aides know what they're doing (or chew them out if he suspects otherwise), and move on.

Of course, the merits of this approach even for an executive are questionable. If the executive doesn't know any of the nuts and bolts of the respective aides' fields, he's reduced to judging other, less reliable indicators of the aides' job performance, such as loyalty and "heart." As revealed in the debacle of Michael Brown's final days at FEMA, Bush didn't know enough about what FEMA was doing to judge whether Brown was doing his job, leading Bush to famously commend Brown for doing "a heck of a job."

But a managerial approach is completely untenable for a Supreme Court justice, because a justice is judged not by the result reached in any particular opinion but by the method used to reach that result. In fact, the single task justices devote most of their time to is writing opinions, and as those of us know who have attended law school and been required to read the fruits of their labor, those opinions are considerably longer than a mere up or down verdict.

And this, to some extent, explains why many conservative thinkers have been so incensed by the Miers nomination. Conservatives thinkers believe in the importance of powerful ideas supported by forceful logic, while Bush only cares about results, and in failing to understand what being a justice is about, Bush has simultaneously undermined the position of all those who believe in the power and importance of logic, thought, and reasoning.

Even many conservatives have admitted that there were holes in Bush's reasoning leading up to the Iraq war, but Bush was able convince the American public not to look too closely. Most Americans just seized on whichever of Bush's various rationales they wanted and didn't focus on the others. Similarly, since starting the war, Bush has managed to make its execution the issue going forward, refusing to be drawn in to questions about the validity of the original rationales.

But this strategy of bait and switch is not an option for a justice. Each justice must write a lengthy explanation of how he or she arrived at a conclusion in a particular case, to be analyzed in law schools for decades to come. And a justice who aspires to increase his or her influence will write opinions not only in those cases the justice is assigned, but concurring and dissenting opinions in other cases, as well.

Like a blind person who has been led by others his entire life and doesn't understand the importance of sight, Bush not only doesn't make convincing, logical arguments himself, he doesn't understand the significance of that skill to others. To him, others just need to be led as he has. Unfortunately, the blind man has just nominated his friend to drive a bus.

Just nominate Arnold from Green Acres -- at least he's got personality

According to documents made public today, "Harriet E. Miers pledged support in 1989 for a constitutional amendment that would ban abortions except when necessary to save the life of the woman." Link. The conventional wisdom is now gaining traction that this means Miers would not vote to "uphold Roe." But it may mean exactly the opposite.

One of the arguments against the Equal Rights Amendment was that it wasn't needed. That is, because the Supreme Court had already held that, in most instances, gender specific language should be interpreted as gender neutral, there was no point in going through the cumbersome process of amending the Constitution.

By that rationale, if a pig had a better personality ... no, I mean if Miers supported amending the Constitution to prohibit abortion, that would leave room for an acceptance of Roe v. Wade as settled constitutional interpretation of the right to privacy.

My own guess -- pure speculation based on Miers' wishy-washiness -- is that she would probably vote to uphold the core of Roe -- the idea that the Constitution contains a right to privacy which protects a woman's right to terminate a pregnancy -- though she would be much more open than O'Connor has been to biting off pieces of Roe around the edges. For example, the Supreme Court recently ruled that a ban on dilation and extraction procedures (a/k/a partial birth abortion) was unconstitutional because it did not contain an exception for the health of the mother. O'Connor was in the majority, but I strongly suspect Miers would have voted with the minority to uphold the ban.

It bears remembering, though, that from a Bush nominee, this is about the most we can expect.

For Bennett and supporters, the grass is always whiter

While President Bush and his team have had a rough time since the nomination of Harriet Miers to the U.S. Supreme Court, the one, perhaps only, conservative who seems to have fared well is Bill Bennett. The nomination of Miers has hijacked much of the public discourse since it was announced and taken the heat off Bennett for comments he made on his call-in radio show. However, it seems worthwhile to return for a moment to those comments. It's not that it matters so much that Bennett was prematurely off the hook; it's more that the underlying presumptions of those comments comes up repeatedly among conservatives and deserve to be rebutted head on.

Bennett, you'll remember, commented that one way to lower the crime rate in the United States, albeit a "morally reprehensible" way, would be to abort every black fetus in the country, and in response to the public outcry, his defenders made two points. First, they pointed out that he wasn't endorsing the mass abortion he posited, merely making a rhetorical point about the inappropriateness of one caller's utilitarian arguments to support abortion. Second, the defenders invariably added, Bennett's assertion was factually correct, which, in the words of Andrew C. McCarthy, a former federal prosecutor in a post on the National Review website, "ought to count for something."

I suppose the defenders' first point is correct. We should give Bill Bennett credit for not actually endorsing mass abortions to carry out the genocide of what he sees as a crime-prone race.

But as to the second point, the idea that crime would go down if all pregnancies of black Americans were terminated simply isn't supported by the facts. And criticizing Bill Bennett's comment is not merely another example of political correctness unfairly seizing on uncomfortable candor, as his defenders' would depict it. Instead, it's pointing out the errors of logic that conservatives consistently make in discussing matters of race.

The proposition that crime would go down if African-Americans were eliminated has its basis in the statistic that African-Americans are reported to commit crimes at a higher rate than white Americans, relative to their respective populations. For example, in 2003, victims of violent crime reported that 63% of those offenses were perpetrated by white persons compared with 21.3% by black persons. Link. Meanwhile, in 2003, 76% of the population was white and 12% was black. Link

However, this statistic is not self-explanatory, as conservatives believe it to be. The threshold observation we should make is that whites still commit most crime in America. Instead, what we are talking about is the frequency of conviction and incarceration relative to respective population figures.

Presumably, Bennett was predicting that because blacks commit crimes at a higher rate than whites, the removal of blacks from the population would shift the overall crime rate closer to the lower rate at which whites commit crime. But in jumping from the factual observation that blacks commit crimes at a disproportionately high rate to the prediction that removal of the blacks would lower the crime rate, Bennett made a series of logical blunders.

First, such an assumption makes the same error as assertions that blacks are better athletes or more disease-prone compared to their white counterparts. In a May 19, 1997, article in The New Yorker, Malcolm Gladwell pointed out that these statements about respective athletic ability or health are probably true but only half of the picture, that it is also the case that blacks are worse athletes and more healthy. That is, that these are issues of increased variability among the black population compared with the white population with respect to these attributes.

For example, it may be the case that while African-Americans are reported to commit crimes at a higher rate than white Americans (a relatively easy statistic to determine), it may also be the case the African-Americans are also more active in preventing crime that white Americans (a difficult statistic to determine), but because the half of the picture that is easy to determine coincides with the pre-existing stereotype of the crime-prone African-American, that's the only half of the picture that makes it into the public consciousness.

Second, Bennett's statement assumes that the factors that contribute to a higher crime rate among blacks are self-contained within the black community, such that the elimination of that entire community would eliminate those factors, as well. But not only is there no evidence to support this assumption, but most evidence indicates otherwise.

An illustration from the context of single sex education is helpful. According to several studies, (see, e.g., Dale Spender's book, Invisible Women: The Schooling Scandal (1983)), girls thrive in a single sex environment. Freed from quicker responding boys, an individual girl will participate more in class, take more leadership, and generally have a better educational experience. But the the converse is not true. Boys do not do better in single sex education; most boys do the same, and some boys do worse. This is because without girls, a group of boys will single out several boys for ridicule and treat them as the surrogate girls.

For an even more common example, think of the friend we all have who complains about his or her boss, and yet, even after changing jobs, the friend will often make the same complaints about the new boss that were formerly made about the old one. It's easy to externalize our problems; it's far more difficult to understand that we often create our own problems, regardless of environment.

And perhaps the strongest evidence that the problems of many in the black community are not endemic to the black community is the fact that blacks in other countries consistently perform higher on standardized tests than blacks in this countries.

As Shakespeare said, "The fault, dear Brutus, lies not in our stars, but in ourselves," and many of the problems within the black community originate not within the black community, but within our society as a whole, and quite probably, were all blacks immediately removed from this country, the problems of the black community would simply recreate themselves within another population.

So no, Bill Bennett, if all black pregnancies were aborted, the crime rate would not go down. Many of the same crimes (and probably some new ones) that are currently being committed by blacks would simply be committed by someone else.

Is it /meers/ like "piers", or /my'-ers/ like "friars"? (Yes, I know the answer.)

- After all, it's the logic that brought us Dick Cheney, and that worked out great, right? Just pick the chair of the search process to fill the seat! Honestly, why would anyone interview with a search chair in the Bush White House? Isn't it appropriate for the person leading a search process to recuse him- or herself from consideration for the position? I heard that, among others, Dick Cheney was on the search committee for the nominee. With him in the room, was anybody else really going to suggest that maybe it would look bad to nominate the person in charge of the process?

- To back up for a moment, the conventional wisdom this past week in Washington regarding Chief Justice Roberts is that he is a conservative like Chief Justice Rehnquist, whereas Justice O'Connor is regarded as a moderate, and therefore, if the President replaces her with a conservative, it would shift the balance of power in the Supreme Court away from the center. However, I don't believe the premise of this line of thinking, that Roberts is the judicial reincarnation of Rehnquist. While it is clear that Roberts, in his younger days in the White House was a Rehnquist-type conservative, his views and positions seem to have moderated considerably, and so I see him more as an O'Connor-type moderate conservative -- conservative, to be sure, as O'Connor herself surely is, but also pragmatic and not ideological. So if I'm right (which I'm probably not), then there is some leeway for O'Connor's replacement to be a Rehnquist-type conservative -- it would just be the flip of what it was before. And that's what I think we probably got with the Miers nomination this morning.

- Yes, Bush promised conservatives he would deliver another Thomalia to the Supreme Court, but did they really think that he ever bothered to brush up on the legal doctrines that Thomalia so stridently promote? This was, after all, the same p.r. department that advertised a "Reformer with Results" and a "Compassionate Conservative," so I'm shocked, shocked to discover that his promise to deliver another firebrand to the Supreme Court was an applause line and nothing more. I'm sure if you read through the transcripts of his campaign speeches, you'd also find a promise to move the American embassy in Israel from Tel Aviv to Jerusalem, just like every Republican since Reagan has promised, and he's delivered on that, too, right? (And I don't think that even requires Senate approval.)

- Democrats should do everything in their power to get this woman confirmed by the Senate as quickly as possible -- as a matter of fact, I don't think they're doing anything important tomorrow. And forget about pressing the White House to provide her old memos. I mean, if something happens to derail Miers' confirmation, after the reaction by the right today, there's no way the next nomination wouldn't be of a firebrand -- it might even be John Bolton or his predecessor in the charm department, Robert Bork himself. (We know Bush isn't above re-nominating previous rejectees, or even giving them recess appointments. Imagine a recess appointment of Robert Bork! And don't think Bush is above it -- this is the same guy who went to war in Iraq over, uh what was it again? Oh yeah, w.m.d.'s, right? Or was it to bring democracy to the Middle East?) In fact, I think Democrats need to arrange a nice long vacation for Nina Totenberg right about now, just in case Nina were to let her journalist's instincts momentarily trump her liberal feminist ones.

- One of the reasons it's hard to get campaign finance or election reform passed is that the legislators think to themselves, "Well, the current system is the one that got me elected, so it can't be all bad." George Bush has a similar weakness from croneyism: it's the system that made him a successful businessman and politician, so it can't be all bad.

- In addition to being a diversity pick by being a woman, this nomination was a diversity pick in the only way that really matters to George Bush: Miers is not the product of an East Coast "liberal" education.

- I was reading the profile of Miers that appeared in the Times upon her appointment a year ago as White House counsel, and this sentence jumped out at me: "Ms. Miers is a regular guest at Camp David and is often the only woman who accompanies Mr. Bush and male staff members in long brush-cutting and cedar-clearing sessions at the president's ranch." (Link) And of course we know from previous reports that what gave John Roberts the edge over Harvie Wilkinson is that Roberts, like Bush, appreciates the virtures of cross-training, as opposed to just running. Is this a President selecting a Supreme Court nominee or a fraternity chairman evaluating rushees?

Baseball - suspense and drama in 3 acts

The beginning of football season is a bitter time for me. Like the Mississippi River that starts as a trickle, the baseball season has been building momentum and power for months, starting with the first pitch way back in April. And now, just as the season is building towards its climax, with a surprising number of contenders for the playoffs, baseball fans are being elbowed aside in favor of a game that, to me as a baseball fan, seems plodding and dim-witted.

As we all know, the primary complaints against baseball are that it is slow-moving and low-scoring. To respond to the former complaint using the football lexicon, a baseball game consists of nine possessions for each team, with each possession lasting from approximately five to thirty minutes, a faster moving pace than most football games. As to the latter complaint, if each run in baseball counted 6 points, as a touchdown does in football, baseball would be the higher scoring sport of the two. So I think these two excuses are not the real reasons many people have a hard time with baseball.

Instead, I think that one of the things that intimidates would-be baseball fans is that committing to watch nine innings seems a more daunting undertaking than four quarters, even though most baseball games wrap up in under three hours, a little shorter than most football games. At the same time, non-baseball fans seem to have no idea that what is happening in the third inning is completely different from what is happening in the sixth, and each of these is completely different from what is happening in the ninth.

And so, in a humble attempt to convert more fans to my sport for the last several games of an exciting regular season and what's sure to be compelling play-offs, I offer my key to watching a baseball game, which address each of these two problems.

First, instead of thinking of a baseball game as nine interchangeable innings, break the game down into three thirds, each consisting of three innings a piece, and what you as a fan are watching for in each of these thirds is completely different. In the first third of the game, you're watching for how one pitcher is going to stack up against the hitters on the opposing team. Sometimes it's just a lopsided match-up, and one team is going to run away with the game. Sometimes even a great pitcher has a bad night and will start getting hit on immediately. Often, it takes the pitcher an inning or two to get properly warmed up, and if he allows a run or two in an early inning before he settles in, this can be decisive in the game, as it was in the classic nail-biter pitchers' duel between the Red Sox and the Yankees on September 11, where the only run in the entire game came on a home run off a fluke pitch in the first inning.

Also, pay attention to the number of pitches the pitcher is forced to throw to each batter. If a pitcher is forced to throw a lot of pitches in the early innings, he's more likely to run into trouble later, whereas if he's able to keep his pitch count low, he's more likely to last late into the game. For example, if a batter hits a fly ball on the first pitch, the ball is caught by an outfielder, and the hitter is out, the pitcher only had to throw one pitch for that batter. By contrast, if a batter gets a full count of 3-2, and then hits several balls foul before striking out, the pitcher may have had to throw ten pitches to get the batter out. And since most starting pitchers are only good for 80 to 100 pitches, this can have big consequences in the later innings.

During the middle third of the game, the two teams will dig in. This is generally the period in which the pitcher is throwing his best stuff. For the most part, if there's much action during this phase of the game, it comes from a batting team maybe getting a runner on base and seeing if they piece something together. A hit plus maybe a batter hit by a pitch, and you've got a couple guys on base. The question becomes whether they'll be able to be coaxed home or whether the runner will be stranded on base.

Also, towards the end of this phase of the game, the pitcher is going to start losing his stuff, so it usually just becomes a matter of when. It's not uncommon for a starting pitcher to make a couple of mistakes during the sixth inning and let a couple of batters get on base with one or no outs. The next thing you know, he walks a guy and the bases are loaded with only one out. Now, if this were to happen in, say, the fourth inning, the manager would probably let the pitcher try to pitch his way out of if (sometimes with disasterous consequences), but in the sixth or seventh inning, the manager is probably going to pull the pitcher and put in a reliever. At this point, the very first pitch by the reliever (who, remember, may not be properly warmed up) might get slammed out of the park, and the game may very well have been decided.

The final three innings of the game are comparable to final Jeopardy: no matter how bad you've screwed up, if you're still within sight of the leader, anything can happen. This is largely because the quality and consistency of relief pitchers is highly variable. Sometimes, if the reliever is doing well, these last three innings might fly by with no runs scored. But the opposite is true: sometimes the final three innings can resemble batting practice, with several runs scored by each side, racheting up the stakes, until, like musical chairs, it's just a matter of who's standing when the music goes off.

And so there it is -- my way to watch a baseball game. I know some people don't like the game and never will. But if you like the idea of watching and enjoying baseball but have just never managed to find a way in, I hope my advice helps. To me, infected as a young child with the Red Sox virus, it's the most suspenseful - and narrative - sport going.

Random thoughts on New Orleans

- Not only do I think Michael Chertoff and Michael "Brownie" Brown won't get fired -- they'll probably get Presidential Medals of Freedom, like those other freakin' numbnuts, Paul Bremer and George Tenet. After all, Bremer and Tenet only screwed up a foreign country. Chertoff and Brown actually screwed up an American city.

- Latest example of When it Matter Most, It Matters Least: The environmental cleanup in New Orleans. The flooding of a single underground gasoline or chemical storage tank would require a ridiculous amount of bureaucratic hoop-jumping with EPA, etc. When the whole city is flooded? Let's just pump it all into the lake. The reasoning is, of course, to adequately treat all that waste water would just be too hard and take too long. When it matters most, it matters least.

- I've always been proud to be among the 3% of Americans who strongly dislike Barbara Bush. She's always gotten a free ride from Americans because she's overweight -- she's got a frame like a linebacker -- she's got grey hair, and she always wears pearls. But underneath, she's a real be-yotch. Now, I feel somewhat vindicated that more Americans recently got a glimpse of the real Bar. The quote:

What I'm hearing, which is sort of scary, is they all want to stay in Texas. Everyone is so overwhelmed by the hospitality. And so many of the people in the arena here, you know, were underprivileged anyway, so this is working very well for them.

Barbara Bush, in an interview on September 5 with the radio program "Marketplace."

To read the story click here. The followup story is here. To listen, click here.

When it matters most, what does it matter?

During law school, I discovered a principle I call, When It Matters Most, It Matters Least.

An example in a non-legal context: let's say you have a friend or spouse with whom you have a policy of "no secrets." The problem is, you did this one thing once, that if you told them, it would destroy the relationship, so you make the determination to keep that one thing secret. That may be a perfectly valid conclusion, but it completely undermines your policy of "no secrets" so that it's more of a policy of "no secrets except for the things you'd most want to know." When it matters most, it matters least.

In the legal area, there are three whoppers.

Whopper 1: The process of asking questions of potential jurors to determine their suitability to serve on a jury for a particular trial is called "voir dire" (generally pronounced among non-French lawyers and judges to rhyme with "more tire"). According to Supreme Court jurisprudence on the matter, in a normal trial, the lawyers are forbidden from asking the potential jurors about their willingness to impose a particular sentence. The reasoning is that it taints the juror's deliberation because it gets the juror to start thinking of the defendant as guilty.

Except that rule is completely suspended in death penalty cases. In death penalty cases, jurors are required to be specifically asked whether, should they find the defendant guilty, they will be willing to follow the law and impose the death penalty. It's called "death qualifying" a jury. The reasoning behind this gigantic exception is that, because the law allows the imposition of the death penalty for certain crimes, jurors shouldn't allow their personal objections to the death penalty to keep them from frying someone. Of course, the courts haven't explained why, if they're worried so much about planting a seed in the jurors' thinking in normal cases that they preclude questions about punishment during voir dire, they don't seem troubled by it when the stakes are even higher in the capital punishment context. When it matters most, it matters least.

Whopper 2: In a normal age discrimination case, you're required to prove the employer intended to commit age discrimination. The problem is, you can almost never find the smoking gun statement which proves the employer's intent to fire someone because he or she is old. Instead, parties alleging age discrimination are allowed to establish intent based on a pattern of discrimination. That is, if you can prove that your company habitually fires people the day before they turn 65, that's sufficient to establish intent.

Okay, in a landmark Supreme Court decision called McClesky v. Kemp, the Court was presented with some pretty strong evidence that there is a racial bias in the imposition of the death penalty. Specifically, a fairly rigorous scientific study determined that, while the race of the defendant doesn't have a huge impact on whether the defendant gets the death penalty, the race of the victim does. That is, people who are black are slightly more likely than people who are white, all other things being equal, to get the death penalty, but people who kill white people are far more likely than people who kill black people to get the death people. And if you're black and you kill a white person, forget about it.

But the Supreme Court ruled that, essentially, this discrimination is simply too pervasive to address or remedy. If they were to recognize the overwhelming racial bias so endemic to the criminal justice system, the entire house of cards would collapse and cease to function. So, like a teenager with her hands over her ears yelling, "La, la, la, I can't hear you!", the Supreme Court ruled that it would ignore the study regarding racial bias in in the judicial system and not change a thing. When it matters most, it matters least.

Whopper 3: One of the mainstays of almost any criminal prosecution is eyewitness testimony. If a witness can say, "Yes, I saw John Doe strangle his wife," a jury will convict. I was in law school during the time of the O.J. Simpson murder trial. My professor in Evidence, who had been involved in a number of murder trials, explained the verdict to his confused classroom by saying that murder cases that lack an eyewitness to the murder, as the Simpson case lacked, almost never result in convictions, no matter how strong the other evidence.

However, there is a scientific study which raises significant questions about the veracity of eyewitness testimony. The study doesn't say people get things wrong; its conclusion is more subtle. What the study says is that there is no correlation between the accuracy of the eyewitness testimony and the certainty with which the witness proffers the testimony. In other words, a witness who says, "I think I saw John Doe strangle his wife, but I could be wrong," is just as likely to be accurate as a witness who says, "I am 100% certain I saw John Doe strangle his wife."

Which helps explain the testimony of rape victims. It is not uncommon for rape victims to testify, "I am 100% certain it was John Doe, who is now sitting at that table, who raped me. The whole time he was raping me, I was staring at his face so I could pick him out of a line-up later." But, as we now know from all the rape convictions which have been thrown out based on newly-admitted DNA testing, even some cases with testimony as unequivocal as what I quoted, sometimes sympathetic, unequivocal rape victims identify the wrong perpetrator. Now, this would be mitigated somewhat if a defense attorney could introduce into evidence the study I referred to regarding the relative accuracy of eyewitness testimony -- it would help juries give the testimony the appropriate weight.

But no. Again, courts have ruled that this study is inadmissible in court. (Lawyers and judges love scientific studies, except the ones which apply to them and their legal system.) The courts stated that eyewitness testimony is a bedrock of the legal system, and allowing the introduction of a scientific study which would undermine its role would undermine the entire legal system so -- again with the hands-over-the-ears "La, la, la, I can't hear you!" -- the study cannot be introduced at trial or its contents argued before a jury. When it matters most, it matters least.

But, as they say, the truth will out.

As I alluded to above, the steady parade continues of defendants being released who were wrongly convicted based on eyewitness testimony (and, let's not overlook, shoddy police work), and have now been freed based on DNA evidence. The most recent member of the parade is Luis Diaz, released August 3 in Miami, Florida, after serving 26 years for multiple rape convictions, now all overturned.

Now, the release of these wrongly convicted men may call for a day for rejoicing, but it hardly returns things to the status quo ante, nor does it relieve us, as a society, from being responsible for the legal system that wrongly imprisoned these men for decades. The importance of releasing these men and allowing many still in prison access to the DNA testing which could prove their innocence cannot be overstated, but it still doesn't give these men their lives back. Nothing can. The civil rights mantra is true, "Justice delayed is justice denied."

On the other hand, as much as the cynic is tempted to belittle those who would find comfort in delayed justice, there is absolutely no denying the unmitigated joy on the faces of these men as they are released from prison, and when I see those pictures, my cynicism just melts away. Perhaps no one more than they understands that, as John Claypool, Episcopalian priest and writer, has said on many occasions, "Life is gift, and birth is windfall," and that despite life's pain and injustice, "I wouldn't have missed being born for anything." (To read the sermon from which this quote is lifed -- one of my favorites -- go here).

Our system let these men down. It allowed them to rot behind bars, largely without regard. But being wrongly convicted, and even being wrongly viewed as a rapist or child molester by their closest friends and family didn't change the reality that these men were innocent.

I don't know what the answer is. Obviously, allowing defense attorneys to present evidence at trial which would call into question the weight given to eyewitness testimony would be a start. So would more meaningful opportunities for post-conviction review of exculpatory evidence.

I don't know what the answer is, but because of the vagaries of fate and DNA testing, we all now know that a substantial portion of our prison inmates are innocent, and we must redouble our efforts to find out which ones.

Because sometimes, even if not everytime, when it matters most, it must matter most.

As the corporate world turns

There was an old country song called, "I'm My Own Grandpa," about a man who married the (widowed) mother of his father's second wife. It's one thing when Jeff Foxworthy jokes about straight family trees, but circular ones just make my head hurt.

There are some great examples of this phenomenon in the corporate context. Here's my top three.

In the 1995, CBS was acquired by Westinghouse. Then, in 1997, Westinghouse renamed itself CBS and spun off the entirety of its old Westinghouse operations as the new Westinghouse. At the beginning of the day, two companies, CBS and Westinghouse. At the end of the day, two companies, CBS and Westinghouse. You get the idea.

Long before the Westinghouse episode, CBS had a subsidiary called Viacom (formed to own the syndication rights to CBS original programming), which it spun off in 1970 and which, in turn, became an entertainment conglomerate in its own right. After the Westinghouse episode, in 1999, Viacom acquired CBS. Viacom is now, in 2005, on the verge of splitting itself in two, with the two companies to be called (no suspense here) CBS and Viacom. (For the Westinghouse/CBS/Viacom timeline, see here.)

Once upon a time, in 1985, the then-biggest acquisition in history involved the takeover of Nabisco by R.J. Reynolds Tobacco, valued at $ 4.9 billion, with the resulting company called RJR/Nabisco. First, in 1993, Kraft Foods (which itself is owned by Phillip Morris Companies, which also owns Miller Brewing Company and its eponymous tobacco company), acquired the Nabisco cereal line. In 1999, the tobacco company was spun off as R.J. Reynolds Tobacco. A year later, Nabisco's holding company sold its Nabisco operations to Kraft a/k/a Phillip Morris and sold itself, the now childless parent holding company, to R.J. Reynolds Tobacco. (The thinking was this kept all the RJR/Nabisco's liability for tobacco-related litigation in the same place.) (For the timeline, see here, here, here, and here.)

And several years ago, AT&T (to pick up the convoluted story of this company at a fairly late chapter) decided to divide itself into separate companies, among them AT&T and AT&T Wireless. AT&T Wireless was recently acquired by Cingular (which itself is owned by BellSouth and SBC Communications, two companies which were once, at a far earlier point in the story of AT&T, spun off from AT&T as so-called "Baby Bells" -- I told you it was convoluted). Now, AT&T has decided that it is advantageous to offer wireless services to its business customers, so it is contracting with Sprint Communications (which is about to acquire Nextel) to provide the services it was once able to provide itself. (See here.) AT&T itself, of course, was recently acquired by SBC Communications, its former subsidiary, which, in turn, is expected to divest itself of its interest in Cingular as part of the deal.

Makes you appreciate Melrose Place for its straightforward plotlines, doesn't it?

Of tolerance and apathy, and the distance between

As a card-carrying member of Generation X (I was born 1971, so I'm smack-dab in the middle), I can say on behalf of my generation that we've been steeped on tolerance as a virtue our entire lives. Concepts such as pluralism, multiculturalism, and tolerance that (mystifyingly to us) were controversial in the 1960's were, by the time I came of age, almost anodyne. We were shown the multi-ethnic "Electric Company" in school, and read in our textbooks the unblemished hagiography of Martin Luther King, Jr.

But somewhere between then and now, the unarguable virtue of tolerance in theory got translated into apathy in practice. It wasn't simply enough to tolerate other beliefs, political or economic philosophies, religions, or lifestyles; one was required to eliminate all normative judgments and accept the equal validity of all choices made by others. Regarding religions, it's not p.c. to believe in one "true" religion. Instead, all religions must be said to be equally valid -- they are merely different paths to the same "god," whatever "god", or lack thereof, a person may choose to believe in.

But what is a religion but the sum of its constituent beliefs? To use an extreme example, if a religion believes in child sacrifice, is that an equally valid religion?

I, as a Christian, believe that my religion is the one true religion. And I fully expect adherents of any religion to believe their religion is the one true religion. Otherwise, why would they belong to that religion? The fact that I believe my religion is true and others' isn't doesn't mean non-Christians should be subject to any discrimination on the basis of their beliefs. By the same token, the right of others to freely practice their religion or non-religion is in no way infringed by my assertion that their belief structure is wrong and mine is right.

In one sense, it is true that there is some truth in any religion, because any religion is an honest attempt to respond to God's presence in our lives. It is also the case that there is some truth in atheism and agnosticism. At its best, atheism is an attempt to be intellectually honest about the state of the universe and a rejection of soft-headed religiosity; it's an assertion of existential self-reliance. Similarly, agnosticism captures the truth that God created us to do more than just go to church every day, read the Bible, and sing from the hymnbook -- he created us to live life. Some of us have inherited the lot of grappling with larger than life issues about the nature of humanity's struggle, but I'm not surprised or disappointed that others find such grappling tedious or superfluous to daily life (I feel this way myself sometimes).

I would also concede that there is more truth in atheism, agnosticism, and some other religions than there is in Christianity as wrongly practiced by many prominent Christians today. But that doesn't mean -- by a long stretch -- that all belief structures or "faith traditions" (to use the p.c.-approved term) are equally true.

The central precepts of Christianity are freedom, forgiveness, self-discipline, and care of others. Yes, we believe in miracles, the virgin birth, and the death and resurrection of Jesus, and some people can't accept the dubious factual historicity of these beliefs based on their subversion of observable scientific principles. My short response to this is that scientific paradigms do not explain the entirety of existence, and scientific skepticism as a posture from which to experience life is very often useful but can also become a stumbling block in understanding the larger truths about human experience and the meaning (if you want to call it that) of our existence.

I give this one paragraph summary of Christianity to return to what I said earlier: A religion is nothing if not the sum of its constituent beliefs. This is what I believe true Christianity is, in my own words, and it's why I believe Christianity is "true" and other religions aren't. If you don't agree with my assertion that Christianity is better than other religions or with how I've summarized the precepts of Christianity, fine. But at least recognize that Christianity (again, as I've described it) stands for something, and so do each of its alternatives. And when well-meaning "tolerant" people treat Christianity, Islam, atheism, and New Age as interchangeable belief structures, they're doing a disservice to each of these belief structures and their adherents.

Tolerance is difficult dance. One of the great ironies of American history is that the same Pilgrims who fled Europe in search of religious freedom wasted no time upon arriving on the "new" continent in enforcing their own religious orthodoxy and persecuting deviants. It's hard to separate beliefs from the person who holds the beliefs. But while I believe my beliefs are better than others', as a person I am in no way superior to anyone else, even remotely, and I would steadfastly defend anyone's right to believe whatever he or she chooses.

But tolerance and apathy are different. One is a great virtue. The other is merely a lazy excuse for refusing to take a stand.

Supreme Court crystal ball

Late update: Rehnquist Says He'll Stay on Supreme Court. (Story link.) In the words of Emily Litella, "Nevermind."

Friday the web was abuzz with the expectation that Rehnquist would announce his retirement. Robert Novak, in typically dramatic fashion, even pinned it down to 4:55 p.m. Friday, upon Bush's touchdown. But of course it never materialized. Rehnquist had been quoted Friday morning, when queried about the timing of his retirement, "That's for me to know and you to find out." "I am rubber and you are glue, whatever you say bounces off me and sticks on you," he did not add.

The now-revised conventional wisdom is that Rehnquist postponed his retirement announcement due to the London subway bombing (and probably in no small part to confound those who had predicted it with such confidence), but that it will likely be forthcoming this week.

Assuming this to be the case, I'm ready to go on record with my prediction as to Bush's picks to replace O'Connor and Rehnquist.

(To digress for a moment, I'd like to note the symmetries at play assuming Rehnquist retires as expected. It is fairly uncommon for there to be two vacancies at once, but, in 1971, there were two vacancies at once, and one of those two vacant seats was ultimately filled by none other that William Rehnquist. Also, O'Connor and Rehnquist both graduated from Stanford Law School, are even are said to have gone out on a date or two as law students.)

My prediction: Chief Justice Alberto Gonzales and Associate Justice Janice Rogers Brown.

My reasoning:

¶ In making decisions, George W. Bush most often goes with the obvious choice, and both of these are fairly obvious.

¶ It is highly unlikely that the Supreme Court is going to be less diverse when Bush leaves office than when he arrived. As others have noted, ideology and, of course, his being a Bush, loyalty are most important to Bush in making appointments, but diversity is close behind. Bush has made a point of undermining the traditional image of Republicans as a club of white males, so I don't believe either of Bush's appointments will fit this description.

¶ The key theme of Bush's second term appointments has been to fill positions with Bush confidents going back to his time in Texas. If he felt in his first term he needed to pick persons with beltway cache or to satisfy some national constituency, those impulses have largely been absent in his second term -- just contrast his first and second term picks at State (Powell vs. Rice) and Justice (Ashcroft vs. Gonzales).

¶ While I think Bush strongly wants to appoint his friend Gonzales to the Court, I think Bush just as strongly wants to buttress the extreme right wing of the Court. My impression is that Scalia represents the far right wing of the legal mainstream, while Thomas is clearly outside that range. That is, Scalia is merely a strident, doctrinaire originalist, whereas Thomas is a card-carrying Constitution-in-Exile nut, and I think Bush means to give Thomas some company out on the limb on the edge of the cliff.

¶ Scalia has been on the Court for 24 years, and that's probably too long to be elevated to Chief Justice at this point in his tenure. Bush could make a more lasting impact on the Court, something I sure he (as every president before him) longs to do, with appointing the new Chief from outside the Court. Further, it's not clear to me that, in his own mind, Scalia needs to be Chief Justice, even if such an offer were on the table. To some extent, being Chief might constrain Scalia from being so given to rhetorical excess in his opinions.

¶ As for Thomas, I'm not sure anyone believes he possesses the temprament, or the ambition, to be Chief.

¶ Janice Rogers Brown is the type of marquee name in the Constitution in Exile movement that it would take to mollify the radical right wing regarding appointing Gonzales Chief. Brown would also ease the way for Gonzales to slide through confirmation hearings -- even with his memos countenancing torture, next to Brown, Gonzales looks like Che Guevara.

¶ I don't think Bush will go with a Souter-type, under-the-radar name. To the contrary, as a sop to the conservatives, I think he'll go with a marquee name. Bush doesn't care if confirmation goes smoothly; conversely, I think he's itching to pick the fight that got put off by the filibuster compromise. If one of his nominees triggers the reprise of the filibuster showdown, so much the better. It's not like he's going to be making any movement in the Senate on Social Security anyway, so it's better for him to take the spotlight off his failed domestic agenda and go back making the Senate Dems look like the intransigents.

Final prediction: whoever the new Chief is, he or she is going to lose the gold stripes on the sleeves and see them for what they are: an affectation whose time has come and gone.